Think about it this way: If the cops arrest somebody and throw them in jail, the accused is entitled to a preliminary hearing where the government has to explain to a court why that person should be kept in jail and denied bail. That hearing is different from the trial to convict and sentence the person. As a threshold issue, cops have to explain why they locked somebody up. The same constitutional rule should apply to a person’s property. If the police jack a car, they should be forced to explain to a court why they’re keeping the car instead of releasing the car on its own recognizance (just pretend that the car is Lightning McQueen).

In dissent, Justice Sonia Sotomayor (joined by Justices Elena Kagan and Ketanji Brown Jackson) made a critical distinction between criminal forfeiture and civil forfeiture. It’s one thing if the property involved is the subject of crime. If the car itself is stolen, or if the car is a getaway vehicle that may contain blood or other evidence of criminal activity, one can understand why the cops might need to keep it. Criminal asset forfeiture can also be a form of punishment—for instance, in the unlikely event that a Wall Street type is ever forced to disgorge illegal or fraudulently obtained profits.

Civil forfeiture, however, requires no crime. Sotomayor notes that 80 percent of civil forfeiture cases “are not accompanied by any ultimate criminal conviction.” She further argues that unchecked civil forfeiture can also lead to false pleas and settlements from property owners desperate to just get their stuff back. She writes:

Loss of a car not only “takes away one’s ability to commute” but also imposes a barrier to “buy[ing] necessities, access[ing] healthcare, and visit[ing] family members, pharmacies, grocery stores, hospitals, and other essential services.”… Given these burdens, low-income communities are also the most vulnerable to pressure from unchecked prosecutors, who can use coercive civil forfeiture processes to extract settlement money from innocent owners desperate to get their property back.

Kavanaugh was unmoved by these arguments, noting only that states are free to rein in civil forfeiture abuses through legislation but the Constitution does not require them too. It’s worth noticing that the Republicans who claim to care so much about private property and protecting citizens from government “theft” when it comes to environmental regulations or tax laws have no problem allowing states to steal cars from innocent citizens who aren’t even charged with crimes.

For what it’s worth, while Kavanaugh is probably off at a Buffalo Wild Wings somewhere wondering if Alabama can use its forfeiture funds to hire better offensive coordinators for their football programs, Justice Neil Gorsuch seemed at least to struggle with his intellectual hypocrisy. Gorsuch wrote a concurring opinion (joined by Justice Clarence Thomas) where he declared both the majority and the dissent to be right.

Oh, he came down on the side of the Republican majority of course, because even if both sides are right, Gorsuch usually thinks the Republican position is more right. And, because this is Gorsuch we’re talking about, he treated us in his opinion to an archaic, intellectually masturbatory discussion of the law of “deodand”—which (I’ve now been forced to learn) was the 11th-century English equivalent to civil forfeiture: Property that caused someone’s death was forfeited “to God” or “the Crown,” but usually the local lord who needed some cash.

Luckily, Gorsuch didn’t seem fond of this particular 11th-century law (probably because he couldn’t figure out how to use it to hurt women or Black people), so the legal upshot of Gorsuch’s concurrence was this musing:

Why does a Nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have “led to egregious and well-chronicled abuses”?… In this Nation, the right to a jury trial before the government may take life, liberty, or property has always been the rule. Yes, some exceptions exist. But perhaps it is past time for this Court to examine more fully whether and to what degree contemporary civil forfeiture practices align with that rule and those exceptions.

What I think Gorsuch is saying is that if some kind of carefully crafted lawsuit came before the court, Gorsuch (and Thomas) would declare at least some aspects of civil forfeiture unconstitutional. I don’t know what that lawsuit would look like. In this case, Culley and Sutton were asking the court to impose a process, that of a “preliminary” hearing, on the states, but we already know that justices like Gorsuch and Thomas don’t like for the courts to do anything to proactively stop the states from violating the Constitution or civil rights (unless the states are trying to keep guns out of the hands of mass shooters—then they think the Constitution gets violently angry). They were never going to go for this one, theft of private property be damned.

But perhaps a lawsuit challenging the asset seizure itself instead of the timeliness of the hearing would tickle Gorsuch’s fancy. I’m sure he could find something from Beowulf about the proper procedure for stealing a golden cup.

In the meantime, the cops will continue to rake in billions of dollars from taking people’s stuff. As usual, Republicans have rendered the Constitution impotent in the face of any two-bit criminal who happens to wear a badge instead of a ski mask.