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U.S. Supreme Court in Washington, D.C. Photo by Eric Thayer/Reuters

How an SUV will test the limits of the 8th Amendment, and more cases to watch

A $42,000 Land Rover SUV is at the center of a U.S. Supreme Court battle this week over whether one of our rights protects us from certain actions by state and local governments.

The justices today began their final round of arguments of 2018. The two-week December argument session — yes, even though it’s still November — is the rough halfway mark in the term. (Still waiting in the wings are challenges involving immigrant “Dreamers,” the transgender military ban, pay discrimination and sexual orientation discrimination in the workplace.) At the end of the two-week session, the justices won’t be back on the bench to hear arguments until Jan. 7.

Even a low-key docket (thus far!) can be interesting and important. History also shows that a low-key term can shift into high gear with just a handful of cases. Let’s take stock with some to watch in the December arguments.

The Land Rover case

Many of us assume incorrectly that all of the provisions in the Bill of Rights apply against federal, state and local governments. Originally drafted to protect against the federal government, most of the Bill of Rights has been applied against the states over time by the Supreme Court. The court has done this by “incorporation” of rights through the due process clause of the 14th Amendment. The last right to be incorporated was in 2010 — the Second Amendment — by a 5-4 Supreme Court in McDonald v. City of Chicago.

Only a few rights remain unincorporated and one of those is the focus of the Land Rover case, Timbs v. Indiana. The case involves the Eighth Amendment and its ban on excessive fines.

Tyson Timbs pleaded guilty to dealing in a controlled substance and one count of conspiracy to commit theft. He was sentenced to six years — one year of home detention and five years of probation that included a supervised drug treatment program.

While his criminal case was pending, a civil suit was filed to forfeit his Land Rover, which he had bought with proceeds of a life insurance policy after his father died. The forfeiture theory was that he had used the SUV to facilitate violation of a criminal law.

The trial court decided that the forfeiture was “grossly disproportionate” to the seriousness of Timbs’ offense (more than four times the maximum fine for his conduct — $10,000) and so was unconstitutional under the excessive fines clause. The Indiana Supreme Court disagreed, finding that the clause did not apply against the states because it had not yet been incorporated by the U.S. Supreme Court.

Timbs, represented by the libertarian Institute for Justice, has drawn support for his argument from unusual bedfellows: the U.S. Chamber of Commerce, the American Civil Liberties Union, and conservative Judicial Watch, among others. They claim states and local governments increasingly use fines and forfeitures in lieu of taxes to pay for their criminal justice systems.

The Apple apps case

From SUVs to iPhones, the justices will also delve into the pricing of Apple apps in an antitrust challenge, Apple v. Pepper.

Antitrust law is complicated. This case boils down to whether consumers can sue Apple for allegedly violating federal antitrust law by requiring them to buy iPhone apps at inflated prices only from Apple’s app store. Apple charges app developers a 30 percent commission for distribution of their products, and the developers pass on that commission fee to consumers.

Apple, supported by the Trump administration, contends it can’t be sued because of
a 1977 Supreme Court decision that says only direct purchasers of a good or service can sue for treble damages under the antitrust laws. Apple says it is not the direct seller; the app developers are.

If Apple can be sued and is found to have violated antitrust law, the law allows the injured parties to collect three times the amount of actual damages, and billions of apps have been sold since Apple opened its store in 2008.

The ‘separate sovereigns’ case

Gamble v. United States is another case that has created some buzz because it may have implications for prosecutions and investigations into the Trump administration and the 2016 campaign.

This case involves the wonky sounding “separate sovereigns exception” to the double jeopardy clause in the Fifth Amendment.

The double jeopardy clause basically says a person may not be tried twice for the same crime. But the Supreme Court has held for many years that the clause allows separate sovereigns — for example, two states or a state and the federal government — to prosecute the same person for the same offense in two trials. Under Alabama and federal law, it is a crime for a felon to possess a weapon. Terance Gamble was convicted of that crime in a state prosecution. While that prosecution was in progress, federal prosecutors charged him with the federal offense of a felon in possession.

He unsuccessfully tried to have the federal charge dismissed as violating the double jeopardy clause. In the Supreme Court, Gamble asks the justices to end the separate sovereigns exception.

Some experts watching the Trump administration investigations speculate that if Gamble wins, it could affect the ability of state attorneys general to pursue the same charges against federally convicted officials whom Trump may pardon.

The Muscogee Creek Nation case

Finally, Carpenter v. Murphy is one of my favorite cases this term because of the rich, complex, but often terribly sad history in the background of the relationships between Native American tribes and the federal government — something that the justices are forced to revisit as they try to discern what transpired years ago and what Congress at that time intended. The justices wrestle fairly regularly with tribal treaty boundary disputes. This one comes with a twist.

Oklahoma, a state with the death penalty, prosecuted and convicted Patrick Murphy, a member of the Muscogee Creek Nation, for killing another Muscogee Creek tribal member. In the Supreme Court filing, he argues Oklahoma did not have jurisdiction to prosecute him because eastern Oklahoma remains a Muscogee Creek Nation reservation and the federal Major Crimes Act requires federal prosecution of certain crimes committed on reservations. A federal appellate court agreed.

The justices will decide whether Congress explicitly “disestablished” or diminished the 1866 territorial boundaries of the Muscogee Creek Nation or whether eastern Oklahoma — home to more than 1.8 million Oklahomans — is an Indian reservation today.

The Department of Justice under the Trump administration and Oklahoma business, oil and gas interests argue that a ruling for Murphy could “radically” upend state civil, regulatory and criminal jurisdiction in eastern Oklahoma, including the city of Tulsa.