The Status of the Bill of Rights
Today’s oral argument in Times v. Indiana strongly suggest that the Supreme Court will incorporate the Excessive Fines Clause of the Eighth Amendment. On the eve of Bill of Rights Day, the comments from Justice Gorsuch and Justice Kavanaugh were especially interesting.
Justice Gorsuch said at one point: “[Most of the incorporation cases took place in the 1940s. … And here we are in 2018 still litigating incorporation of the Bill of Rights. Really?” Justice Kavanaugh added: “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”
These comments indicate that there is nothing left to selective incorporation except the selective grant of certiorari. In other words, in practice the Supreme Court accepts that everything in the Bill of Rights is fundamental The few provisions that remain outside of that circle (for example, grand juries and civil juries) will only remain unincorporated because the Court will choose not revisit its nineteenth century cases that so held. The Bill of Rights has scaled the constitutional heights in the way that John Bingham and Justice Hugo Black foresaw long ago.