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Thursday’s opinions in Plain English

It’s been a busy week at the Court, especially in terms of cases in which the Court’s job was to interpret language in a statute or regulation.  In fact, although the general public usually thinks of the Supreme Court’s work as mostly involving the Constitution, many of the Court’s cases come to it because federal courts of appeals have interpreted federal statutes or regulations differently, leading to different applications of the law.

Thursday’s cases were also interesting because three of them were unanimous; the public often thinks of the Court as deeply divided, with the conservatives and liberals locked in mortal combat (and, speaking of Mortal Kombat, we’re still expecting the violent video games case any day now).  That’s not always the case – in fact, this Term, the Justices have been unanimous in well over fifty percent of the cases.  True, we’re still expecting opinions in twenty-three cases, and some of them are likely to divide the Justices heatedly; that always happens towards the end of the Term, probably because the opinions take longer to write (as the Justices are likely trying to resolve their disagreements or writing separately).

Let’s turn now to the opinions themselves.  Earlier this week, I discussed the Court’s opinion in McNeill v. United States, in which the Court interpreted a provision of the Armed Career Criminal Act (“ACCA”). On Thursday, in Sykes v. United States, the Court issued another opinion dealing with the same statute. This time, however, the question was whether fleeing from the police in a vehicle counts as a “violent felony” under the ACCA. The question is particularly important because the ACCA requires a fifteen-year minimum sentence if the defendant has three previous convictions for “violent felonies.” In the ACCA, Congress specifically listed several crimes – including arson, burglary, and extortion –  as violent felonies. However, the statute also contains what has come to be called the “residual clause,” which provides that other crimes can also qualify as violent felonies if they “otherwise involve[] conduct that presents a serious potential risk of physical injury to another” and are “purposeful, violent, and aggressive.”

In Sykes, Marcus Sykes pled guilty to being a felon in possession of a firearm, a federal crime that can trigger the ACCA violent felony provision.  At the time of his firearms conviction, Sykes had three previous felony convictions, two of which were for armed robbery and therefore clearly violent felonies under ACCA definitions. The third, however, was for fleeing from the police when they attempted to stop him for driving without his headlights on, a class D felony in Indiana. When Sykes was sentenced under the ACCA, he argued that because fleeing from the police in a vehicle is not a violent felony, he should not receive the fifteen-year minimum sentence. In Thursday’s opinion by Justice Kennedy, the Court disagreed.

The Court held that fleeing from the police in a vehicle is a violent felony. In some of its earlier cases, the Court adopted what it calls a “categorical approach” to determining whether a crime fits within the residual clause:  it looks at the nature and risk of the crime generally, not at the specifics of the crime that a particular defendant actually committed it. For vehicular flight, therefore, the Court considered what types of people will generally be fleeing from the police in a car; it concluded that fleeing from the police in a vehicle presents a level of risk to others that is roughly the same as the risk from the specific offenses listed in the statute and is therefore fits within the residual clause. Using much of the same logic, the majority found that fleeing from the police in a vehicle is also “purposeful, violent, and aggressive.”

Justice Scalia, a longtime critic of the residual clause, dissented.  He argued that the clause is too vague. In his familiar somewhat caustic tone, Scalia asserted that the majority’s “tutti-frutti” opinion only makes an already blurry area of the law more confusing .  His criticism was not limited to his fellow Justices, however; he went on to blame Congress for passing laws that seem attractive to their constituents, but are not well thought out, leading to what he sees as judicial lawmaking (of which Justice Scalia is not a fan).

Another interesting point about this case is that Justices Sotomayor and Kagan came out on opposite sides – for the very first time since they have been serving on the Court together.  Justice Sotomayor (a former prosecutor and trial court judge) joined the majority, but Justice Kagan wrote a dissent, in which she argued that not every case of vehicular flight under the Indiana statute carries the same level of risk that accompanies a burglary or an arson. For example, she noted, a felon might flee from the police in a low-speed chase (O.J. Simpson, anyone?), which would not satisfy the “violent” and “aggressive” requirement.

If you’re interested in criminal law, Thursday was a great day for you, because the Court also announced its opinion in DePierre v. United States. The Anti-Drug Abuse Act of 1986 (“ADAA”) requires a different, tougher penalty for selling “cocaine base” than it does for selling “just” cocaine. When the petitioner, Frantz DePierre, was convicted, the possible sentences for selling “cocaine base” were much longer than he would receive for selling the same amount of cocaine.

At trial, DePierre argued that, unless the government proved that what he sold was crack cocaine – his interpretation of the statutory term “cocaine base” – he could not be subject to the increased sentence. Although the government did not prove that what DePierre sold was crack, he was still convicted of and sentenced for selling cocaine base. After the First Circuit disagreed with his interpretation of the statutory language, he asked the Supreme Court to review the issues.  Because the federal courts of appeals are split on the issue, the Court granted review.

In an opinion written by Justice Sotomayor, a unanimous Court held that the most natural reading of the statute is that cocaine base is any form of cocaine in its chemically basic form. Crack cocaine, freebase, and coca paste are all chemically basic forms of cocaine. What most people think of as “cocaine,” the white powdery substance, is cocaine in its non-basic form. The Court noted that even if the statute was not as clear as it could have been, any other interpretation of the statute would render other parts of it meaningless. – which would violate the Court’s normal rule of trying to give meaning to every part of a statute when possible.

Justice Scalia agreed with the majority but filed a concurring opinion because he disagreed with the majority’s use of “legislative history.” The term “legislative history” refers to any of the material that is generated in the process of passing a bill, including floor debates, committee reports, and analysis from lawyers.  Justice Scalia has vocally and consistently criticized members of the Court for considering sources other than the written text of a law; the “textual approach,” he argues, helps to avoid the confusion that may arise when members of the legislature are mistaken as to certain facts or policies. In other opinions, he has noted that legislative history may be taken out of context and used for purposes that it was not intended.

This case is also interesting because it shows how knowledgeable the Justices must about subjects other than law – or how much they need to learn, and quickly, when they are not knowledgeable.  While some cases are challenging for the Court because the area of the law is difficult or complex, others deal with a subject matter that is equally difficult to understand. For example, the first section of Justice Sotomayor’s opinion reads as though it was a college-level chemistry textbook.

The third opinion from Thursday was another unanimous one, Talk America, Inc. v. Michigan Bell Telephone Co., and another statutory interpretation case, this time involving an agency interpretation of a federal statute, the Telecommunications Act of 1996. The facts in this case are hard to understand for those of us who are not in the telecommunications industry, but they boil down to a dispute over the prices that the successors of the old AT&T monopoly could charge their competitors for access to their networks. The Federal Communications Commission (FCC) read its regulations and orders in a way that allowed AT&T (now Michigan Bell in Michigan) to charge its competitors only enough to cover its costs, while Michigan Bell wanted to charge market rates (which would allow the company to make a profit).

In Talk America, the Court was not deciding whether the FCC’s reading of its regulations was the correct one.  Instead, the question was whether or not the agency’s interpretation deserved “deference” – a doctrine based on the idea that administrative agencies are experts in their fields and therefore generally better at interpreting statutes and regulations that are ambiguous.   In Thursday’s opinion by Justice Thomas, the Court unanimously agreed that neither the Act nor the FCC’s regulations “squarely” answered the question, so it turned to the FCC’s reading of its regulations to resolve the ambiguities.  And because the Court decided that the agency’s reading was not “erroneous or inconsistent” with the regulations, it deferred to the FCC, holding that Michigan Bell AT&T must charge its competitors only for its costs.

In Thursday’s last opinion, Microsoft v.i4i Limited Partnership, the Court returned to patents (you may remember Monday’s opinion in Stanford v. Roche).  This time, two technologies (software for editing computer documents) were at issue. i4i developed and patented its customized software, and then it sued Microsoft for developing a competing version of Microsoft Word, alleging that Microsoft willfully violated i4i’s patent.  Microsoft argued that the patent was invalid and, therefore, it could not have violated it.

Under the Patent Act of 1952, a patent is presumed valid.  If someone challenges the validity, he has to show that it is invalid; the person or company that has the patent does not have to show that it IS valid.  The question then becomes what kind of burden of proof the party arguing invalidity has to meet.  Naturally, Microsoft wanted that burden to be very low – a “preponderance of the evidence” standard, requiring only that Microsoft prove that i4i’s patent was more likely invalid than not.  On the other hand, i4i wanted Microsoft’s burden to be very high:  it argued that Microsoft would have to provide “clear and convincing evidence” that the patent was invalid.  The trial court applied the higher “clear and convincing evidence” standard; Microsoft lost and appealed.

The Supreme Court’s job?  To determine what Congress meant when it said that a patent is “presumed valid.” As it turns out, “presumed valid” is a common-law term, and when Congress uses common-law terms (absent evidence to the contrary), the courts have to apply the “settled meaning” of those terms.    Reaching back nearly a century to some of its old opinions , the Court unanimously (with Chief Justice Roberts recused) explained that because a simple “preponderance of the evidence” standard would be too easy to meet, Congress intended to adopt the tougher “clear and convincing” evidence standard when it enacted the Patent Act.

If those last two cases sound difficult to understand, believe me when I say that they are tough for lawyers, too.  As I explained at the beginning of this post, a great many of the Court’s cases arrive at the Court because even federal judges cannot agree on what statutory language means.  Throw in difficult facts about technology, and you’ve got a case that even the Justices may need a lot of help to understand.

Next week, we are definitely expecting opinions on Monday, and it is very likely that we will get them on least one other day.  Still to be decided?  The California violent video games case, the Wal-Mart class action, and any number of other interesting issues.

Recommended Citation: Lisa Tucker, Thursday’s opinions in Plain English, SCOTUSblog (Jun. 12, 2011, 6:13 AM),