The Court as resolver of unsettled constitutional questions
The Supreme Court appears in these episodes chiefly as the body that decides questions lower courts have left open. In the Timbs v. Indiana litigation, Sam Gedge of the Institute for Justice describes how the Indiana Supreme Court “stumbled into an important unsettled question of federal constitutional law” when it held that it did not need to decide whether taking Tyson Timbs’s $42,000 car was an excessive fine, because the US Supreme Court had never said the Eighth Amendment’s Excessive Fines Clause applies to the states Awaiting the Verdict in Timbs v. Indiana (2018). Gedge explains that the Eighth Amendment contains three protections — against cruel and unusual punishments, against excessive bail, and against excessive fines — and that the third had not been settled as to the states.
Bob Zadek frames the doctrinal backdrop: the Bill of Rights originally limited the federal government, and the 14th Amendment applied it to the states, but the Supreme Court has decided right by right which provisions are incorporated. He notes that some rights are obvious candidates, such as freedom of speech and religion, and the right to bear arms in the Heller case, while the Excessive Fines Clause had never been found to apply or not to apply to the states Awaiting the Verdict in Timbs v. Indiana (2018). Gedge describes the same process as “selective incorporation,” a right-by-right inquiry into whether each of the first eight amendments is fundamental enough to apply to state and local authorities.
Gedge is explicit that the petition to the Court was narrow: whether the Excessive Fines Clause applies to the states through the 14th Amendment, through the Due Process Clause or the Privileges or Immunities Clause. He says the Institute for Justice was not asking the Court to decide whether forfeiting Timbs’s car was in fact excessive, and that the Court would likely decide the gateway question and remand for the Indiana Supreme Court to take a first cut at what makes a fine excessive. He notes that courts have said a fine or forfeiture is excessive if it is grossly disproportional to the underlying offense, but that this provides little more guidance than the word “excessive” itself Awaiting the Verdict in Timbs v. Indiana (2018).
The Court and the SEC: the Dirks censure
A different account of the Court comes from the insider-trading episode, where Bob Zadek tells the story of Ray Dirks, a stockbroker in the 1970s who received a tip from a man named Secrest that his employer, Equity Funding, was a fraud. Dirks investigated, was rebuffed by the Wall Street Journal and the SEC, and told his institutional clients to sell. Zadek says Dirks made not a dime, Equity Funding collapsed, and the SEC censured Dirks for sharing inside material non-public information Legalize Insider Trading (2009). Zadek says Dirks fought the censure up to the US Supreme Court, where Ronald Reagan’s Solicitor General argued against the SEC, and the Court said Dirks did nothing wrong and removed the censure. Guest Don Boudreaux agrees that Dirks’s conduct was what should happen, and that his clients’ selling helped expose the fraud earlier than it would otherwise have been exposed.
Zadek draws a broader lesson: the episode shows how random the “crime” is and how arbitrary the enforcement is, and he argues that a criminal law that is randomly enforced, void for vagueness, and anti-marketplace cannot be allowed to exist. Boudreaux says the agency that holds itself out as the protector of investors did not do its job, and that the SEC going after Dirks makes his blood boil Legalize Insider Trading (2009). The Court here is the corrector of an agency’s error, though the correction came ten years after the censure.
The Court, government size, and confirmation politics
Gail Heriot offers a structural account of the Court’s salience. She says the reason Supreme Court confirmation processes are so contentious is that government is so big: in the framers’ time the federal government was a very small part of anybody’s life, but now so much rides on it that confirmations become contentious Gail Heriot on the Significance of Justice Scalia’s Passing (2016). Bob Zadek agrees that the stakes go up tremendously, and adds that to the extent there is less power in Washington, the stakes go down. The exchange ties the intensity of fights over the Court to the scope of what the Court’s decisions govern.
Economic liberty and the Court as last resort
In the rent-control episode, a caller named Steve, who owns property in San Francisco, describes vacancy control: after a tenant moves out, the landlord may not raise the rent above what the previous tenant paid, even after five years and improvements. Steve says the only solution he sees is for individual landlords to sue the city and the state, and that the matter has to be resolved by the US Supreme Court as a violation of the right to offer a service for a reasonable amount The Rent Control Bomb (2019). Charlie Deist calls this step the atomic bomb of rent control, saying that if a landlord cannot recoup improvement costs, the landlord becomes a serf for the tenant.
Bob Zadek responds that the New Deal was the death knell of economic liberty in America, and that between the Lochner era and the New Deal there was a golden age when the right of consenting adults to negotiate a contract free of government interference was respected. He says that era is gone and only very slowly coming back, manifesting in minimum wage laws and rent control, where the government puts its thumb on the scale setting the price The Rent Control Bomb (2019). The Court is invoked by the caller as the institution that would have to vindicate the economic claim, though Zadek’s own account suggests the doctrinal ground for such a claim was lost in the 1930s.
Across episodes
The excerpts show the Court treated in more than one episode, but they do not show a single question argued across episodes with development between an earlier and later treatment. The 2009 episode presents the Court as the body that vindicated Ray Dirks against the SEC; the 2016 episode presents the Court’s confirmation politics as a function of government size; the 2018 and 2019 episodes present the Court as the forum for unsettled incorporation and economic-liberty questions. The speakers differ — Don Boudreaux, Gail Heriot, Sam Gedge, Charlie Deist, and callers — and the topics differ, so the excerpts show no arc, only repeated recourse to the Court as the place where contested boundaries are drawn.
What the sources do not cover
The excerpts do not state how Timbs v. Indiana was decided, nor the outcome of the Dirks litigation beyond the removal of the censure. They do not give the membership of the Court, the dates of the relevant terms, or the text of any statute at issue. They also do not describe the Court’s internal reasoning in any case, only what the speakers say about it.