The Supreme Court’s plurality opinion in Luis v. United States may have come out right, but it did so in a way that should scare the crap out of a criminal defense lawyer.  The main opinion, by Justice Breyer, with the votes of CJ Roberts, and Justices Ginsburg and Sotomayor, holds that the government cannot deprive a criminal defendant of the use of untainted funds to defend herself from prosecution.

The property at issue here, however, is not loot, contraband, or otherwise “tainted.” It belongs to the defendant. That fact undermines the Government’s reliance upon precedent, for both Caplin & Drysdale and Monsanto relied critically upon the fact that the property at issue was “tainted,” and that title to the property therefore had passed from the defendant to the Government before the court issued its order freezing (or otherwise disposing of ) the assets.

By balancing the government’s interest in recovering the “loot” against the defendant’s Sixth Amendment right to counsel, they held the defendant wins. That this was even a question, given that the “loot” was untainted, requiring the Supreme Court’s intervention is the only thing surprising about the opinion.

And, indeed, it falls to Justice Thomas to state the obvious.

I agree with the plurality that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice. But I do not agree with the plurality’s balancing approach. Rather, my reasoning rests strictly on the Sixth Amendment’s text and common-law backdrop.

On the one hand, there is a constitutional right, the right to assistance of counsel. On the other, there is a statutory interest in the government seizing money, and its penumbra of demanding that the money be “preserved” before any entitlement is proven so that it can’t be used to defend against the post hoc claim of entitlement that relates back to its inception. That’s the sort of convoluted gymnastics that makes it fun to be a government lawyer. It’s also the sort of nonsensical Catch-22 that undermines constitutional rights that only a government could love.

And it took Clarence Thomas to point out the obvious, that balancing the constitutional right to counsel with the government’s “right” to prevent dissipation of funds that it might later be entitled to seize if it wins against the individual who is denied money to retain counsel of choice is the wrong way to arrive at the right answer. With Scalia gone, this is going to really make it hard to redirect your angst at Thomas, which means we’re left only with Sam Alito to hate.

But the really interesting part of the Luis decision was the dissenting opinion of Justice Kagan. Whether she would have dissented if another vote was needed to arrive at the proper outcome is an interesting question, but that her dissent was principled is not:

I find United States v. Monsanto, 491 U. S. 600 (1989), a troubling decision. It is one thing to hold, as this Court did in Caplin & Drysdale, Chartered v. United States, 491 U. S. 617 (1989), that a convicted felon has no Sixth Amendment right to pay his lawyer with funds adjudged forfeitable. Following conviction, such assets belong to the Government, and “[t]here is no constitutional principle that gives one person the right to give another’s property to a third party.” Id., at 628. But 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.” Monsanto, 491 U. S., at 615. At that time, “the presumption of innocence still applies,” and the Government’s interest in the assets is wholly contingent on future judgments of conviction and forfeiture. Kaley v. United States, 571 U. S. ___, ___ (2014) (slip op., at 6).

The Monsanto (and Caplin & Drysdale, for that matter) decision came at that peculiar moment in time when the nation was wrapped up in drug hysteria, like we have terrorism today. There was no extreme, no depth of rationalization, to which our three branches of government wouldn’t go to eradicate the plague of drugs.

And now that the destruction of our nation at the end of a crack pipe is in the rearview mirror, Justice Kagan raises the precedential elephant in the room.  The problem, as she notes, is that Luis didn’t argue for reversal of Monsanto, a tactical decision as it’s far easier to get the Supreme Court to distinguish a decision on differing facts than get it to reverse itself. Luis steered clear of that question, despite the conundrum that if Monsanto was good law, it left a hole in reason big enough for the government to drive an armored SWAT vehicle through.

It also makes the point that the Breyer plurality opinion, balancing the Sixth Amendment right to counsel against the government’s interest to get its hands on the “loot,” requires unprincipled balancing. The problem with any of the wiggle concepts that go into “balancing” is that transitory fears outweigh constitutional rights, provided that it’s the fear of the month.

Back when Monsanto was decided, drugs were the worst thing ever. Today, it’s terrorism. Whenever the current flavor of the worst thing ever gets weighed against the Constitution, fear wins. Only later, when we return to our senses, do we realize that we let fear of fear twist reason and principle. But we only return to our sense when it comes to past fears. The new one, and there is always a new one, really, really is the worst thing ever.  Think Korematsu if you need another flagrant example.

One can understand Kagan’s dissent as a matter of principle, a slavish adherence to precedent and judicial modesty, or an admonition that whenever we let our jurisprudence be guided by the current flavor of fear, really bad law comes out of it. But then, since whatever we’re afraid of is the worst thing ever, we’re only too willing to forfeit rights because the “Constitution is not a suicide pact.” And surely we’ll all die if the worst thing ever isn’t stopped.