Justice Kagan Just Wrote The Most Interesting SCOTUS Opinion Of The Year


The Supreme Court has spent a busy week not deciding cases. Tuesday morning, the Court announced that it would not decide a major challenge to public sector unions’ ability to fund themselves — the justices split 4–4, and thus left an earlier, pro-union decision in place. Then, just a few hours later, the Court issued a puzzling order suggesting that the justices are unsure if they’ll be able to decide a high-profile birth control case. Meanwhile, Senate Majority Leader Mitch McConnell (R-KY) remains firmly committed to not deciding whether Supreme Court nominee Merrick Garland is fit to serve on the nation’s highest Court.

With so many undecisions keeping Washington busy this week, it’s easy to miss the fact that the Court managed to hand down an honest-to-God decision on Wednesday. In Luis v. United States, the Court limited the government’s power to freeze assets held by criminal defendants who have not yet been convicted of a crime, at least when the defendant wishes to use that money to pay for an attorney.

Admittedly, the Court couldn’t decide on a single rationale for this decision. The justices split into four different opinions with less than a majority joining Justice Stephen Breyer’s plurality opinion. But in a week marked by indecision, Luis was the closest anyone on the Court came to a firmly held position.

The case involves Sila Luis, a woman who, if convicted, will rank among the least sympathetic individuals to come before the Court since a 2015 lawsuit tried to take health care away from millions of people. Luis allegedly engaged in massive Medicare fraud, cheating the public out of close to $45 million, if the allegations against her prove true. She then managed to spend all of these allegedly ill-gotten gains.


Yet, despite spending down the proceeds of her alleged fraud, Luis also has $2 million remaining in her possession that was not earned through any allegedly illegal scheme. The government obtained a court order forbidding Luis from spending this money, on the theory that it should be used to pay restitution and criminal penalties if Luis is convicted. Luis, meanwhile, wants to use at least some of these funds to hire legal counsel to defend her against the criminal charges that she faces. The question before the Court is whether, by effectively cutting off Luis’ ability to pay for the lawyer of her choosing, the government denied Luis her Sixth Amendment right to “assistance of counsel.”

If Luis’ only assets were the proceeds from her alleged fraud, than this would be an easier case — at least under existing precedents. As Justice Breyer explains in an opinion joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor, a criminal defendant’s ownership of “tainted’ assets is “imperfect.” “The robber’s loot belongs to the victim,” Breyer writes, “not to the defendant,” and thus “the Government may well be able to freeze, perhaps to seize,” such tainted assets.

Luis, however, involves “untainted” assets, and a majority of the Court (the four justices who joined Breyer’s opinion plus Justice Clarence Thomas, who wrote separately) conclude that the government cannot constitutionally prevent a criminal defendant from using money they obtained legally to hire defense counsel.

The problem with this decision, as Justice Anthony Kennedy notes in a dissent joined by Justice Samuel Alito, is that money is fungible — a problem Kennedy illustrates with a hypothetical:

Assume a thief steals $1 million and then wins another $1 million in a lottery. After putting the sums in separate accounts, he or she spends $1 million. If the thief spends his or her lottery winnings, the Government can restrain the stolen funds in their entirety. The thief has no right to use those funds to pay for an attorney. Yet if the thief heeds today’s decision, he or she will spend the stolen money first; for if the thief is apprehended, the $1 million won in the lottery can be used for an attorney.

He has a point. If you accept the legitimacy of the government’s power to freeze assets held by someone who has not yet been convicted of a crime, than there’s something strange about deciding the scope of a defendant’s constitutional rights based on whether they use sufficiently savvy accounting practices.

Which brings us to the most interesting opinion the Court has handed down this year.

Justice Elena Kagan’s dissenting opinion is very brief — less than three pages — and it barely qualifies as a dissent at all. Indeed, Kagan begins her opinion by suggesting that Breyer and Thomas’s opinions don’t go nearly far enough in protecting criminal defendants’ right to counsel, and by warning that the Court took a terrible wrong turn in a 27-year-old opinion limiting the right to counsel.


That opinion, United States v. Monsanto, held that federal courts may “enter a pretrial order freezing assets in a defendant’s possession, even where the defendant seeks to use those assets to pay an attorney.” Monsanto, however, involved “tainted” assets. The defendant in that case allegedly “directed a large-scale heroin distribution enterprise,” and the assets frozen in that case allegedly “had been accumulated . . . as a result of his narcotics trafficking.” Thus, Monsanto represents the other side of the distinction between tainted and untainted assets that Breyer and Thomas rely upon in their opinions.

Kagan, however, doubts that the government may even prevent tainted assets from being used to hire legal counsel. “I find United States v. Monsanto, a troubling decision,” she states in the very first sentence of her opinion. While it is one thing to seize someone’s assets after they’ve been convicted of a crime, “it is quite another thing to say that the Government may, prior to trial, freeze assets that a defendant needs to hire an attorney, based on nothing more than ‘probable cause to believe that the property will ultimately be proved forfeitable.’” After all, before a defendant has been convicted “the presumption of innocence still applies.”

Justice Kagan’s opinion is technically a dissent from the Court’s decision favoring Luis, largely because Kagan leans on a procedural quirk in this case. “[T]he correctness of Monsanto is not at issue today,” Kagan writes, because Luis “has not asked this Court either to overrule or to modify that decision.” Nevertheless, her opinion is a clear invitation to future litigants. It probably won’t be long before an enterprising defense attorney reads Kagan’s opinion and decides to attack Monsanto directly.

It’s worth noting that much of Kagan’s opinion agrees with a central argument in Justice Kennedy’s dissent. Like Kennedy, Kagan believes that “the thief who immediately dissipates his ill-gotten gains and thereby preserves his other assets is no more deserving of chosen counsel than the one who spends those two pots of money in reverse order.” Yet, while Kennedy concludes that we should treat these two alleged thieves the same way by denying them both funds to hire counsel, Kagan suggests that the opposite is true.

That is, when a constitutional right comes into conflict when the government’s ability to collect money post-conviction, Kagan’s view is that the Constitution should prevail.