It’s hard to know whether to laugh or cry at the Supreme Court’s 5-4 decision on March 4 upholding the state of Michigan’s forfeiture of Tina Bennis’ half-interest in a family car.

Her offense was… well, nothing. Her husband was the offender. He had been caught in their car receiving oral sex from a prostitute, while parked on a Detroit street after ending his shift at a steel mill. Mrs. Bennis had been at home, wondering where he was, calling the missing persons bureau.

The Court did not hold that Mrs. Bennis had reason to know of her husband’s sordid little tryst. Nor did it rely on Solicitor General Drew Days III’s incredibly lame assertion (in an amicus brief) that Mrs. Bennis had not done enough to prevent her husband from using their car to betray her. Nor did it question her claim that she had recently paid for most of the $600 car with her own hard-earned money from baby-sitting and other chores.

Rather, the Court held in Bennis v. Michigan that none of this mattered. The state not only could confiscate and sell the car (as Mrs. Bennis conceded), but could use the proceeds of her $300 share to pay its costs and keep any money that might be left over. All this, done under the authority of a state nuisance statute aimed at purging neighborhoods of prostitution, was consistent with due process of law.

This result was dictated, Chief Justice William Rehnquist held for the majority, by some precedents dating back to the era of pirate ships and privateers. Widely regarded (at least until Bennis) as having been undermined by more recent decisions, those anachronistic precedents allow governments to forfeit the interests of innocent owners of properties used for illegal purposes, based on the outmoded legal Fiction that the property is somehow the guilty party.

Thus did the Court bless the state’s conscription of a blameless wife’s property in the cause of punishing her faithless husband-and with Justice Ruth Bader Ginsburg, the great feminist, supplying the fifth vote!

And thus did the Court break sharply with the spirit of its own recent decisions curbing forfeiture powers, which have been notoriously abused by greedy governments and law enforcement agencies seeking new sources of revenue. With its sweeping assertion of governmental authority to seize the property of those who have done no wrong, the Bennis Court has given the law a shove back toward the Middle Ages.

As Oliver Wendell Holmes Jr. wrote 99 years ago: It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

In professing to be bound by precedent in Bennis, Rehnquist-who in other cases has kicked over precedents that stood in the way of a result he wanted -quoted from The Palmyra, an 1827 decision upholding the in rem forfeiture of a Spanish privateer that had been seized for piracy after attacking a U.S. vessel: " ‘The thing here is primarily considered as the offender, or rather the offence is attached primarily to the thing.’ "

Rehnquist went on to suggest that a car used for illicit sex on a single occasion is the legal equivalent of a pirate ship: "The Bennis automobile … facilitated and was used in criminal activity," he wrote-as if the car were guilty of something.

Authorities going back to Blackstone have condemned this sort of legal fiction as a "superstition" inherited from the "blind days" of feudalism. But allowing in rem forfeitures without proof of fault by the property owner at least served a policy goal back when pirate ships, privateers, smugglers, and customs evaders prowled the coasts. As Justice Anthony Kennedy explained in a dissent in Bennis, the law of that era responded to "the necessity-of finding some source of compensation for injuries done by a vessel whose responsible owners were often half a world away and beyond the practical reach of the law and its processes."

That necessity has long since passed. Indeed, the Court itself complained in 1921, in one of the precedents cited by Rehnquist (J.W. Goldsmith Jr.-Grant Co. v. United States),of beingforced by still earlier precedents to reach unfair results. And in more recent decisions, the Court has seemed poised to put an end to such unfairness.

In Calero-Toledo v. Pearson Yacht Leasing Co. (1974), it suggested that due process bars "unduly oppressive" forfeitures of properties owned by completely blameless parties. And in Austin v. United States (1993), it held civil forfeitures to be a species of punishment subject to the Eighth Amendment’s proscription of "excessive fines," and construed the older forfeiture precedents as resting "on the notion that the owner has been negligent in allowing his property to be misused, and that he is properly punished for that negligence."

Austin seemed to set the stage for harmonizing forfeiture law with the modern due process principle that-as Justice John Paul Stevens wrote in a separate dissent in Bennis, joined by Justices David Souter and Stephen Breyer-"[f]undamental fairness prohibits the punishment of innocent people." Instead, Rehnquist, Ginsburg, and company brushed aside the Calero-Toledo language as "obiter dictum," virtually ignored Austin, and ratified the punishment of a completely innocent woman.

The most surprising thing about this decision was Ginsburg’s vote. She usually sides with Stevens, Souter, and Breyer, in forfeiture as in most other cases. But here, she signed onto Rehnquist’s majority opinion (along with Justices Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas), while adding an acidic little concurrence of her own to "highlight features of the case key to my judgment."

Unlike Thomas-whose separate concurrence acknowledged the unfairness to Mrs. Bennis and expressed concern about possible abuse of forfeiture laws "to raise revenue from innocent but hapless owners"-Ginsburg evinced neither sympathy nor concern. Rather, in a snippy retort to Stevens’ dissent, Ginsburg wrote: "Michigan has decided to deter Johns from using cars they own (or co-own) to contribute to neighborhood blight, and that abatement endeavor hardly warrants this court’s disapprobation."

But this begs the question. Nobody was claiming that Michigan shouldn’t be allowed to deter and punish John Bennis, or any "John," by confiscating his car. The issue was whether, after taking and selling the car, the state should be allowed to keep the innocent co-owner’s share of the proceeds.

And on this issue, Ginsburg’s concurrence offers only self-evident irrelevancies ("the car in question belonged to John Bennis as much as it did to Tina Bennis"), legalistic piffle ("the nuisance abatement proceeding is an ‘equitable action’ "), flimsy rationalizations (the Bennises had another car), and a feeble claim that the trial judge had been fair to Mrs. Bennis.

In making that claim, Ginsburg cited the judge’s explanation that he was giving the state the entire proceeds because "the age and value of the forfeited car… left ‘practically nothing’ to divide after subtraction of costs." So maybe Ginsburg would have ruled for Mrs. Bennis if the car had been a nice new Mercedes worth $40,000, instead of a l977 Pontiac sedan worth $600.

But why should that matter? As Kennedy said in his dissent, "[N]othing supports the suggestion that the value of her co-ownership is so insignificant as to be beneath the law’s protection."

Suppose the "costs" (which the record does not disclose) had been $500. Why should the remaining $100 go to the state-as the trial judge expressly ordered- rather than to Mrs. Bennis? Indeed, why shouldn’t she get her entire $300 half-interest back, with the state paying any costs not covered by John Bennis’ share?

And let’s unpack that word "costs." The trial judge ordered payment not only of any immediate costs of sale, but also of various law enforcement costs-"the filing fee of this action," "attorneys costs," and "all police costs"-with "any remaining balance … [to] be paid to the general treasury of the State of Michigan."

It was the state, not Mrs. Bennis, that decided to punish her husband by forfeiting their car. So why should the state be able to use her money to cover the costs of its law enforcement proceeding? Could the state have kept her husband in jail overnight and then billed her for room and board?

In short, this was an outrageous rip-off of an innocent citizen by state officials whose own agencies benefited from their taking of her property.

Why couldn’t Justice Ginsburg see this? Given the hollowness of her various rationales and the priggishly pointed tone of her reference to "Johns," I can’t help suspecting that the outcome might have been different if John Bennis had been caught in the car with (say) a marijuana cigarette instead of a prostitute.

Be that as it may, one lesson of Bennis v. Michigan is that even easy cases sometimes make bad law.