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For Monday morning’s re-argument in Johnson v. United States, the Justices have posed their own Question Presented: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague.” When the Supreme Court directs the parties to answer such a question after struggling with a case for two months (it heard the first set of oral arguments in November and ordered re-argument in January), many would say that the handwriting is on the wall. However, the federal government’s supplemental brief presents as strong a case as one can imagine for answering the new question in the negative. And at oral argument on Monday morning, the federal government is likely to make clear that it – and the statute – will not go down without a fight.

This case is the fifth in seven years addressing the “residual clause” of the Armed Career Criminal Act (“ACCA”), which requires a mandatory minimum fifteen-year sentence for an unlawful gun possessor who has three prior “violent felony” convictions. In defining what felonies, including state-law crimes, are violent felonies, the ACCA first lists some specific crimes: “burglary, arson, or explosives, [or] involves the use of explosives.” The statute then provides, in its “residual clause,” the following general definition: any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

On two prior occasions (Sykes v. United States and James v. United States), Justice Antonin Scalia has suggested that the residual clause is unconstitutionally vague. But a majority of the Court did not accept that suggestion. When I previewed the first argument in November, I asked whether there “are . . . (finally) five votes to declare the residual clause … unconstitutionally vague?” But at the November 5 argument (which I summarized for the blog), no Justice asked that question. That may be because the defendant had not asked them to address it: Johnson’s lawyer, Assistant Federal Public Defender Katherine Menendez of Minnesota, argued only that “mere possession” of a short-barreled shotgun should not qualify. Although my post-argument discussion suggested that “perhaps Justice Scalia will once again swing the Justices his way, once he has their attention in the privacy of their Conference room,” there was little evidence to support it.

But then, after two months of silence, the Justices set the case for re-argument and directed the parties to brief the “unconstitutionally vague” question. The fact that the constitutional question was not added until two months after argument suggests that one or two Justices actually tried their hands at drafting a dispositive opinion, only to find sharp disagreement among their colleagues. Perhaps in response to a circulated draft dissent, the Court decided that it must resolve Justice Scalia’s question once and for all.

Johnson’s supplemental brief is relatively predictable: “The residual clause is unconstitutional across the board.” But the federal government’s opposing supplemental brief is really a tour de force: if the Justices are going to declare the residual clause unconstitutionally vague, the opinion writer (presumably Justice Scalia if he prevails) will have his work cut out for him. I would expect that Johnson’s attorney will first be questioned vigorously on Monday by Justices who will have the federal government’s supplemental arguments firmly in mind.

It is true that the general language of the residual clause has left the Court, as well as lower courts, confused as to result and rationale in prior cases. And even the federal government’s brief concedes that the statutory concept of “potential risk” is at best a “subtle redundancy.” Nevertheless, the government’s brief presents many reasons that will likely give some Justices pause before they strike down this federal criminal sentencing statute as vague.

The government initially points out that the standard for declaring a criminal statute unconstitutionally vague is “exceptionally demanding,” and it has never been applied to strike down a non-capital criminal sentencing – as opposed to guilt-innocence – law. Meanwhile, in an unusual ninety-nine-page appendix, the government identifies “over 200” state and federal criminal statutes that use similar “risk of” violence or harm language to define crimes or set penalties. (This is reminiscent of when Justice White listed nearly two hundred statutes that were invalidated when the Court struck down the “one-House veto” way back in 1983.)  The government argues that there is no other way for Congress to “realistically draft” better language to capture more precisely the wide variety of violent crimes used among the states, without having to give constant and “unrealistic … legislative attention” to the enterprise.

Courts struggle all the time, the government points out, with applying general language to specific facts. But appellate de novo review of statutory application generally leads them, over time, to a consistent and (the government argues) proper result. Meanwhile, the government notes that a majority firmly rejected Justice Scalia’s “unconstitutional” view less than four years ago in Sykes, and that stare decisis interests are particularly strong in the statutory interpretation context. Indeed, the government warns of the monumental effort that would be required to reconsider and possibly resentence thousands of offenders if this portion of the ACCA is struck down.

Finally the government notes that the Court’s precedents actually do provide a manageable test (this is presumably to respond to some Justices’ desire, expressed at the first argument, for an “intelligible principle”): federal judges applying the residual clause must make “a commonsense judgment [based on their “deep well of experience”] about the risk posed by the offense in the ordinary case.” (The government argues that Sykes was correct in this regard, and that another ACCA decision, Begay v. United States, may require modification.) And the government then returns to a fundamental point that it made at the first argument: the ACCA applies only to four-time felons — not the “average citizen” — and for that category of offenders a sawed-off shotgun is generally possessed only for unlawful, potentially violent, reasons. The government concludes by starkly throwing down the gauntlet (there is no gentler way to describe it) at the Court’s feet: “The fact that super-majorities of this Court have repeatedly found the residual clause sufficiently clear should make it all but impossible” (my emphasis) to now find it unconstitutionally vague.

Whether the government’s spirited defense of the residual clause will be enough to turn the tide is uncertain; the Court’s recent history suggests that it doesn’t order supplemental briefing on whether a federal statute is unconstitutional unless a majority is already inclined to answer “yes.” Johnson has filed a supplemental reply brief to counter the government’s, emphasizing the Court’s repeated struggles with the statute and what it describes as “turmoil” and confusion in the lower courts. (Johnson also argues that in his case, the mere possession of a weapon ought never to be described as potentially violent, and a gun-owners amicus brief supports that view.) Justice Scalia will likely be loaded for bear at the argument – but we will probably not know until June whether he has captured a majority of votes.

Posted in Johnson v. U.S., Featured, Merits Cases

Recommended Citation: Rory Little, (Re-)Argument preview: Is possession of a sawed-off shotgun a “violent felony”? The government is not going down without a fight, SCOTUSblog (Apr. 17, 2015, 11:00 AM), http://www.scotusblog.com/2015/04/re-argument-preview-is-possession-of-a-sawed-off-shotgun-a-violent-felony-the-government-is-not-going-down-without-a-fight/