The Journal launders the Court’s record with a bush pilot’s stolen plane.
The law in Jouppi v. Alaska is on the pilot’s side. Ken Jouppi flew a grocery run from Fairbanks to Beaver, a dry village. A passenger hid two cases of Budweiser and a case of Bud Light among the bags for her husband’s birthday. State troopers found the beer. Alaska charged Jouppi with a misdemeanor, locked him up for three days, fined him $1,500, and seized his $95,000 Cessna — his livelihood. The plane never took off with the contraband. The Alaska Supreme Court upheld the forfeiture in 2025 on the ground that alcohol damages rural communities — a general-purpose justification for any punishment, not the proportionality analysis the Eighth Amendment requires.
The excessive fines clause exists for this. Under United States v. Bajakajian, 524 U.S. 321 (1998), a punitive forfeiture is unconstitutional when “grossly disproportional to the gravity of a defendant’s offense.” Seizing a bush pilot’s airplane over a misdemeanor he may not have known about, where the plane stayed on the ground, is the disproportion the clause was built to catch.
Timbs v. Indiana, 586 U.S. 149 (2019), incorporated the excessive fines clause against the states. The Court should hold Alaska to the standard Bajakajian set. Governments increasingly use forfeiture to pad their budgets — 45 states collected nearly $300 million in 2023, per the Institute for Justice, which represents Jouppi and tracks forfeiture data nationally — and the excessive fines clause is the constitutional shield. Jouppi should get his plane.
The law is clear. The framing the Editorial Board builds around it is not.
“One progressive fiction about the Supreme Court is that it’s busy serving billionaires and big corporations,” the Board writes. “Far more often its best work is defending individuals against state power.” The argument uses a sympathetic forfeiture case to construct a general narrative of the Court as the individual’s champion — and to immunize the institution against the criticism its doctrinal record warrants.
Consider Sergio Adrián Hernández Güereca. He was fifteen. In June 2010, he crouched behind a concrete pillar on the Mexican side of the El Paso border crossing. A U.S. Border Patrol agent, standing on American soil, shot and killed him. The agent later said he was firing at rock-throwers. The boy was unarmed.
His family sued — not for politics, not for a cause, because their son was dead and the man who killed him was a federal officer acting under color of law. The only vehicle available was Bivens, the implied damages action the Court created in 1971 so that individuals could recover when federal officers violate their constitutional rights. The argument was straightforward: the agent fired from the United States, the bullet crossed the border, the Fourth Amendment follows the bullet.
In Hernandez v. Mesa, 591 U.S. 30 (2020), five Justices refused. The Court held that extending Bivens to this context would mean creating “a wholly new rule” — and cross-border complications, national-security concerns, foreign-relations fallout made that too much to risk. The family received nothing. No damages. No hearing. No remedy. The individual against the state, except the state is the federal executive, and the Court shut the courthouse door.
By 2022, in Egbert v. Boule, 596 U.S. 482 (2022), the Court had foreclosed new Bivens claims in essentially every context where alternative remedies could plausibly be argued to exist — which is nearly every context. The remedy the Court built to hold federal officers accountable has been narrowed until it works like a fire exit behind a padlocked door — still there, still useless.
The Board writes about the bush pilot because the bush pilot is useful. The fifteen-year-old killed at the border is not. The Court that Jouppi needs to enforce the excessive fines clause is the same Court that closed Bivens to a dead boy’s family — and the Board that invokes one to burnish the institution’s reputation knows which story it is leaving out.
The bush pilot and the teenager at the border are both individuals against the state. The Court hears one and bars the other. The Board whitewashes the pattern with the pilot it finds convenient.