In praise of robotic judging

The Supreme Court mindlessly and correctly decides Culley v. Marshall

In Culley v. Marshall, decided on May 9, 2024, the Supreme Court held that the Due Process Clause does not mandate preliminary hearings in civil forfeiture cases involving personal property. The Supreme Court gave two reasons for this conclusion:

1. The case is similar, though not identical, to two prior cases in which the Due Process claimants lost.

2. The historical evidence, although not directly on point, suggests that preliminary hearings aren’t required.

And that’s pretty much it. Nothing about first principles, nothing about fairness, nothing about practicality. Just … the facts of Culley seem pretty close to some data points where the Due Process claim was rejected, so we’ll reject it here too.

In my opinion, the Supreme Court reached the right decision for the right reason. Robotic application of precedent is a simple and predictable way of resolving cases, and I doubt this decisionmaking algorithm produces worse results on average than deep thinking from first principles. As Culley illustrates, the less thoughtfulness in judicial decisionmaking, the better. (At least sometimes.)

Two hearings aren’t better than one

Drug dealing is always a bad idea, but it’s an especially bad idea if you’re using a car. If the police catch you dealing drugs, and they determine that you’ve used your car to facilitate the crime—for example, you transported the drugs in the car—the police will not only arrest you, but they will take your car.

What happens if the prosecutor decides not to charge you with a crime, or if you’re acquitted? Do you get your car back? You’d think the answer is “yes,” but actually, the answer is, “not necessarily.” The government can initiate a civil (i.e., not criminal) forfeiture case in an effort to keep your car. Because it’s a civil case, the government doesn’t have to prove guilt beyond a reasonable doubt (the exact standard of proof varies by jurisdiction) and the car owner has fewer procedural protections.

A lot of people really hate civil asset forfeiture. If you want to get a libertarian lawyer fired up, mention eminent domain or “wetlands”; but if you want a libertarian lawyer to go nuclear, casually utter the words “civil asset forfeiture” and your task is complete. Among other problems with civil asset forfeiture, it gives local governments a financial incentive to aggressively pursue dubious cases—why take the political hit of raising taxes when you can seize and sell property by claiming it was used to facilitate crime, without having to prove the crime beyond a reasonable doubt?

Sometimes, when a car is used in the commission of a crime, the car’s owner is innocent. For example, sometimes, the car owner lends the car to a relative or friend, and the relative or friend commits a crime without the owner’s knowledge. The Supreme Court has held that, in this situation, there’s no Due Process problem with the government taking the car. Kids, if you are going to deal drugs, do not use Mom’s car!

It seems extremely unfair to punish Mom for her wayward child, wherefore states have generally enacted statutory “innocent owner” defenses. Basically, if you own the car, and you’re innocent, you keep the car. But some states place the burden of proof on the car owner, and it can be quite hard to prove the innocent-owner defense—what happens if you testify that you didn’t know your child was dealing drugs and the judge doesn’t believe you?

Another unfair feature of civil asset forfeiture is timing. Remember how it works—if the police officer concludes that the car was used in the commission of the crime, the police officer takes the car. He’s not required to get a judge to sign off. The arrestee can insist that it was Mom’s car until he’s blue in the face; the police officer is still authorized to make the unilateral decision to take the car. Of course, there will eventually be a hearing before a judge, but the hearing will happen after, not before, the police officer takes the car.

This creates a problem for Mom. She has to go to work the next day, but the police has her car. Eventually she’ll get a hearing, but in the meantime, how is she going to get to work? By the time she gets her car back, she might have lost her job or expended a lot of money out of pocket that she’ll never get back, even if she’s 100% innocent.

In Culley v. Marshall, the Supreme Court considered what the Due Process Clause has to say about that particular type of unfairness. Culley involves a typical fact pattern—Ms. Culley lent her car to her son, the police found drugs and a gun in the car, they arrested him and took the car, and Ms. Culley said it wasn’t her fault.

Both sides of the case agreed that after the police officer takes the car, the state can’t dilly-dally indefinitely. Alabama—which took Ms. Culley’s car—argued that if a state offers a sufficiently prompt forfeiture hearing for the innocent owner, the state’s Due Process obligations are satisfied.

How prompt is prompt? Well, there’s a prior Supreme Court case that adopted a crisp, administrable rule: forfeiture hearings must take place within … LOL, this is the American legal system, of course there’s going to be an indeterminate multi-factor test. Here are the multi-factors, if you must know: “(i) the length of the delay of the forfeiture hearing, (ii) the reason for the delay, (iii) whether the claimant requested a timely hearing, and (iv) whether the delay was prejudicial.” (These are the same factors used to determine whether a trial is sufficiently speedy under the Speedy Trial Clause.). Alabama argued that as long as the forfeiture hearing occurs sufficiently promptly, with “promptness” assessed under this gruesome four-factor test, there’s no constitutional violation.

Not good enough, said Ms. Culley. She contended there have to be two forfeiture hearings. According to Ms. Culley, in Round One, the State has to convene a quick-and-dirty preliminary forfeiture hearing within a couple of weeks of the forfeiture. The purpose of this hearing, Ms. Culley argued, was to determine whether the State could keep the car until Round Two—the Main Event forfeiture hearing.

Actually, Ms. Culley’s position was slightly more nuanced than that. She argued that the Supreme Court should apply the Mathews v. Eldridge balancing test to determine whether a preliminary hearing was required. The Mathews balancing test might be the single most indeterminate multi-factor test in world history—under that test, courts deciding whether the Due Process Clause requires a particular hearing must balance “the private interests at stake, the value of added procedures, and the burdens on the government from the added procedures.” So, according to Ms. Culley, courts should balance these factors to decide whether a Round One hearing should happen prior to the Round Two hearing, the timing of which is determined by a different indeterminate multi-factor test. Got that?

Easy opinions and hard opinions

How is a judge supposed to decide this case in a principled way?

Step One: Read the Constitution. It says “Due Process.” Not helpful.

Step Two: Read the cases. Good news! There are two Supreme Court cases that are factually similar to this case, both of which went the government’s way:

• In United States v. $8,850, 461 U.S. 555 (1983), a customs inspector seized $8,850 from Mary Vasquez. The government criminally charged Ms. Vasquez with a misdemeanor that would have resulted in criminal forfeiture of the $8,850—which would have made civil forfeiture unnecessary—but she wasn’t convicted. So it then initiated a civil forfeiture action, 18 months after the seizure of the $8,850. Ms. Vasquez argued that 18 months was too long. The Supreme Court applied the Speedy Trial Clause factors and held that 18 months wasn’t too long.

• In United States v. Von Neumann, 474 U. S. 242 (1986), Mr. Von Neumann picked up a Jaguar in Canada and drove it down back into the States without declaring it. The Customs Inspector seized the car. He immediately filed an “administrative remission” petition—basically, a request that the government exercise its discretion to forgive his failure to declare the car and give him his car back. He got it back, but it took 36 days. He sued, claiming 36 days was too long. The Supreme Court held that he didn’t have a right to a speedy administrative remission hearing. As long as he got a sufficiently prompt forfeiture hearing, Due Process was satisfied.

Ms. Culley’s best case was United States v. James Daniel Good Real Property, 510 U. S. 43 (1993). In that case, the Supreme Court held that a hearing is required before the government seizes real property—like land or a house—as opposed to personal property, like a car. Why can the police seize your car without a judge’s signature, but not your house? Because if you realize that your car is at risk of being seized, you can drive it to a different state, whereas your house is stuck in the ground. Of course, Ms. Culley’s case involved a car rather than a house. But James Daniel balanced the Mathews v. Eldridge factors, which is what Ms. Culley wanted the Supreme Court to do, making it a good case for Ms. Culley.

Let’s pause for a second. To me, the following two propositions are clear:

• This case is closer to $8,850 and Von Neumann, where the government won, than it is to James Daniel, where the government lost.

• You could distinguish the case from $8,850 and Von Neumann if you really wanted to.

Suppose you viewed the Supreme Court’s prior case law as the Word of God, and you viewed your sole task as to extract the rule that was most faithful to the case law. In other words, you believed it was sacrilegious to question the correctness of any prior Supreme Court case, and you had no judicial philosophy other than “I will, to the maximum possible extent, ensure a pleasing harmony between the case before me and prior cases.” Under that philosophy, Ms. Culley would lose. $8,850 holds that Due Process was satisfied by a forfeiture hearing that satisfied the Speedy Trial Act factors. Von Neumann holds that there’s no additional right to a speedy remission hearing. You don’t have to think too hard to conclude that Ms. Culley’s Due Process right is satisfied by a forfeiture hearing that satisfies the Speedy Trial Act factors, and she doesn’t get a preliminary hearing. James Daniel is factually more distant than $8,850 and Von Neumann because it involves real property.

But suppose you had a particular judicial philosophy that motivated you to push the law in a particular direction. Maybe you’re sympathetic to an expansive understanding of the Due Process Clause, maybe you’re concerned about asset forfeiture abuse. In that case, you could—if you wanted to—distinguish $8,850 and Von Neumann. You could say that neither case addresses innocent owners, and the equities are different in such a case. This wouldn’t be an unprincipled or lawless way to decide the case, because it’s true—neither case addressed innocent owners. There’s some broad language in $8,850 and Von Neumann favoring the government, but it could easily be brushed aside as dicta. The opinion could be written in a way that harmonizes all the cases. It would just take more effort.

Let’s take a quick peek at history. It turns out that forfeiture statutes from the Founding era did not provide for preliminary hearings. Nor did forfeiture statutes from the time of the Fourteenth Amendment’s adoption.

This evidence is helpful to Alabama, but it’s not dispositive. Asset forfeiture in the eighteenth and nineteenth centuries was very different from asset forfeiture today. As Justice Gorsuch’s Culley concurrence explains, historical asset forfeiture was limited to the admiralty, customs, and revenue contexts. Scenarios like Ms. Culley’s case—where her son borrowed her car and got arrested, and her car was forfeited, preventing her from going to work—wouldn’t have come up until recently. Also, although the historical evidence is murky, it seems that forfeiture hearings occurred quickly Back In The Day, obviating the need for preliminary forfeiture hearings. Finally, as asset forfeiture expanded in scope, some states started enacting statutes providing for preliminary hearings or other interim protections—indeed, after the events of Ms. Culley’s case, Alabama amended its laws to provide for expedited hearings for allegedly innocent owners.

Still, it’s easier to write an opinion deploying the historical evidence in Alabama’s favor than to explain that evidence away. If you want to use that historical evidence in a pro-Alabama opinion, all you have to say is: historically, there weren’t any preliminary forfeiture hearings, so today, there’s no right to preliminary forfeiture hearings. Explaining why the historical evidence isn’t dispositive requires closely examining the differences between the past and the present. It’s possible, but it’s more work.

The case against judicial philosophies

All Supreme Court Justices have an agenda.

Maybe “agenda” is too strong. All Justices have a judicial philosophy that motivates them—at least sometimes—to push the law in a particular direction. No Justice mechanically reviews precedent and joins the easiest-to-write majority opinion in every case.

Is it principled to decide cases in a non-mechanical way? Of course it is. That’s what it means to have a judicial philosophy. An originalist Justice, for example, might adopt narrow readings of non-originalist precedents in an effort to bring the law closer to the original public meaning. A practical-minded Justice might decide cases based on a cost-benefit analysis rather than locating and applying the most factually similar precedent. No one would think that these Justices are deciding cases in an unprincipled way.

Of course, some types of non-mechanical judging are unprincipled. A Justice who decides close cases based on the criterion of “what will help my preferred presidential candidate win the next election?” is being unprincipled.

In between those poles are Justices who favor particular classes of litigants across a range of legal issues. For example, a Justice might be sympathetic or unsympathetic to, say, religious-freedom claimants, or immigrants, or Native Americans, or gun owners, or death row inmates, and might err on the side of vindicating or rejecting those litigants’ claims, regardless of the particular legal issue before the Court.

Is this a principled way of judging? It depends on whether “I am generally sympathetic or unsympathetic towards group X” is a principled criterion. However, one will observe that, in practice, every Justice on the current Court—indeed, every Justice in American history—does, either explicitly or implicitly, apply this criterion. In cases involving particular classes of claimants, the same voting patterns tend to pop up again and again. If I told you that the Supreme Court rejected a death row inmate’s claim by a 6-3 vote, you would not need to know the legal issue to predict the voting lineup. If you think this is an unprincipled way of judging, then you will think that every judge in America is unprincipled and be angry all the time, and that is a bad way to go through life.

So: non-mechanical judging is ubiquitous and there’s nothing wrong with it. But there’s still a case to be made for mindless, rote application of precedent.

1. It’s simple. All things being equal, one would prefer judicial opinions that are easy to understand. “This case is similar to this other case” is easy to understand.

2. It’s predictable. In a world of mechanical judging, it’s obvious how Culley comes out. In a world where judges try to move the law, there’s a lot more discretion to adopt narrow readings of prior cases and case outcomes become uncertain.

3. It reduces division. When Justices try to move the law in a particular direction, one will often find sharp disagreement, because different Justices want to move the law in different directions.

4. There’s a pleasing honesty to it. When Justices write judicial opinions, they don’t say things like “I’m really sympathetic to gun owners / immigrants so I’m going to adopt a strained, but still barely plausible, reading of precedent to ensure the gun owner / immigrant wins.” They say: “The most natural reading of our precedents is that the gun owner / immigrant wins.” Wouldn’t it be sort of beautiful if the Justice earnestly decided the case based on the Justice’s actual view of the most natural reading of precedent?

5. It makes case outcomes less dependent on the composition of the Court. Behind the veil of ignorance—if you didn’t know the composition of the Court at a particular time—you’d think this is a good thing.

6. It’s not clear that non-mechanical judging produces better outcomes. Again, behind the veil of ignorance, you’d have no reason to think that the view of current Justices on how the law should be moved is “better” than the view of the Justices who authored the prior precedents.

When you don’t know, be a robot.

It’s not realistic to expect Justices to apply a mechanical approach to precedent in every case, and I wouldn’t support this, either. But I think they should sometimes apply such an approach. As I see it, Culley is the ideal case for this approach.

Why? Because I don’t have the slightest idea how the law should be moved.

Due process is about balancing fairness with efficiency. How does that balance shake out with respect to preliminary hearings in civil forfeiture cases? Well, on the one hand, it seems really unfair for people to lose their cars for long stretches when they’re innocent.

On the other hand, these preliminary hearings might end up pretty useless if judges just rubber-stamp police officers’ testimony that they had a reasonable basis for taking the car. Judicial resources might be better spent on other things.

On the third hand, what if judges make inaccurate rulings based on insufficient information at these hearings? Maybe the owner will come to court and insist it wasn’t her, the police won’t have time to gather evidence, and the owner will get the car back, even though it actually was her. Then she’ll disappear with the car. That would also be unfair.

Or maybe the police won’t want to offer certain evidence at the preliminary hearing because it’s intertwined with the criminal investigation, which will again lead to inaccurate outcomes.

What if the property in question isn’t a car, where it’s easy to check who’s on the title, and the government has difficulty locating all potential claimants? If the preliminary hearing happens too quickly, the prevailing innocent owner might not be an owner at all.

I have never represented anyone at a forfeiture hearing, or even seen a forfeiture hearing for that matter, and lack any idea whatsoever about the answers to these questions.

Another point is that even if Due Process claimants lose in the Supreme Court, states are still free to grant them additional protections. For example, as noted above, after the events of Ms. Culley’s case, Alabama enacted a statute allowing innocent owners to obtain expedited hearings. So maybe the Court should err on the side of federalism and allow state legislatures to decide whether to offer preliminary hearings, rather than adopting a national rule?

Of course, one could say that in every case in which a litigant asserts a constitutional right. And maybe that argument is weaker here, where states have a financial incentive not to protect innocent owners. But Alabama apparently did protect innocent owners. Why did it do this? Have other states done this? Should we conduct some kind of public choice analysis?

(I would like to see this particular image posted prominently in a judge’s courtroom. I feel it would promote settlements.)

To me, the right way to think about Culley is:

• A judge would have no idea whether ruling in the claimants’ favor would be a good idea or a bad idea.

• As such, may as well just find the closest precedent, and apply that.

So I’m satisfied with the majority opinion. The majority’s reasoning, in a nutshell, is as follows: “This case looks a lot like $8,850 and Von Neumann, and also, in the 1700s and 1800s, there weren’t preliminary forfeiture hearings.” True, true, and good enough for me. The dissent expresses concern about the injustice of civil asset forfeiture and adopts a narrow reading of $8,850 and Von Neumann. The dissent’s reading of those cases is undoubtedly permissible, but it is less natural than the majority’s interpretation, and that, in my view, is the dispositive point.