Professor Bryan Wildenthal’s Law Review Article Cited by U.S. Supreme Court Justice Gorsuch

February 20, 2019

Professor Emeritus Bryan H. Wildenthal has added another accolade to his roster of scholarly accomplishments. In a concurrence filed on Wednesday, U.S. Supreme Court Justice Neil Gorsuch cited a law review article authored by Professor Wildenthal. This is a tremendous mark of distinction.

On February 20th, the U.S. Supreme Court ruled that the 8th Amendment right not to be subject to “excessive fines” applies not only to the federal government but is also “incorporated” via the 14th Amendment so as to apply to state and local governments as well. The Court thus remanded for further proceedings the case, Timbs v. Indiana, in which the state sought to forfeit a man’s vehicle worth $42,000, for a drug offense for which the maximum fine was $10,000.

The Court’s decision was unanimous, with Justice Ruth Bader Ginsburg writing for the Court. (Justice Clarence Thomas concurred only in the judgment.) Justice Neil Gorsuch joined Ginsburg’s opinion, but he also filed a brief concurrence in which he cited a 2007 Ohio State Law Journal article by Professor Wildenthal, who is a visiting professor at the law school this year. In the 2007 article, Professor Wildenthal argued that the entire Bill of Rights is “nationalized” by the 14th Amendment and thus applicable to the states. The article is available here:

https://ssrn.com/abstract=963487

This is the second occasion on which Professor Wildenthal’s 2007 article has been cited by the U.S. Supreme Court. It was cited multiple times, in both the opinion of the Court, and in a concurring opinion, in McDonald v. Chicago (2010), the last case to involve the 14th Amendment Bill of Rights “incorporation” issue. (McDonald concerned the 2nd Amendment right to bear arms).

Please congratulate Professor Wildenthal when you see him. We are lucky to have him as a member of our community.