Last week, it was double jeopardy in Oklahoma. This week, it’s car seizures in Chicago. The through-line is Justice Neil Gorsuch joining Justice Sonia Sotomayor for the second week in a row to call out what they see as government abuses.

It’s not a new phenomenon for the Obama and Trump appointees to team up in a certain type of case that lends itself to bipartisan agreement.

But early in the new court term, they continue to distinguish themselves from their colleagues on the nine-member bench who haven’t shown the same interest in drawing attention to these appeals the court refuses to hear.

“I again encourage courts considering this issue to take care that due deference to state police powers does not eclipse constitutional rights,” Sotomayor wrote Monday in the case of O’Donnell v. Chicago, joined by Gorsuch. The issue, in their view, is that the city’s vehicle forfeiture scheme offends the Fifth Amendment’s prohibition on taking private property for public use without “just compensation.”

Per Sotomayor’s statement, the city takes vehicles when drivers fail to pay as few as two parking tickets — after that, she wrote, the city “can do as it pleases with the vehicle, with no obligation to pay compensation, offset the unpaid ticket debt, or return any surplus to the owner if the vehicle is sold for a profit.”

Her statement appeared on the court’s latest order list, which is a routine scheduled document that announces the latest action on pending petitions. It takes four justices to grant review of a petition, and most of them are denied without comment from any of the justices. That’s what makes it notable when justices speak out in connection with denials.

To be sure, Sotomayor and Gorsuch didn’t dissent from the O’Donnell denial, as justices sometimes do in their separate writings. As was the case with her statement that Gorsuch joined last week on a double jeopardy issue, the duo agreed with their colleagues that the Chicago case didn’t warrant review. Sotomayor noted that the nation’s lower courts are divided on the constitutional issue, and that the split would “benefit from further percolation” before the high court steps in.

So, the subject could return to the justices in a future case, where petitioners can count on at least two justices showing interest. They would need two more to win review.

School admissions, home distilling

The denial in the O’Donnell case (and many others that went unremarked upon by any justices) came as the court granted review in two new appeals that will both be closely watched this term.

In Association for Education Fairness v. Montgomery County Board of Education, the court that struck down race conscious university admissions in 2023 agreed to consider a challenge to the Maryland district’s magnet middle schools.

Challengers argue that the district’s lottery system is too hard to access for Asian American students who are packed in “high-performing, low-poverty elementary schools.” Unsuccessfully opposing review, the district stressed that the ultimate admissions decisions are random, adding that it’s “difficult to even conceptualize” how a lottery-based system could be intentionally racially discriminatory.

The legal question that the court will consider in the Maryland case involves what plaintiffs must prove to show that a facially neutral admissions policy is racially discriminatory. The answer carries nationwide implications.

The other new case taken up by the court on Monday asks whether the government can ban people from making liquor at home.

That’s been the case for more than a century, but a federal appeals court struck down the restriction, which led the Justice Department to ask the high court to step in. Notably, the opposing parties — people who want to distill at home and the Hobby Distillers Association — agreed that the justices should review the issue so that the court can provide a nationwide resolution on the matter, which has divided lower courts.

The legal question in that case, DOJ v. McNutt, is whether the federal prohibition on producing distilled spirits in certain locations, including homes, exceeds congressional power.

The court will hear arguments in both appeals later in the term, with rulings expected by July.

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