Breaking News

Argument report: Balancing over- and under-inclusiveness

After first tackling the constitutionality of a Massachusetts law that imposes a thirty-five-foot buffer zone around abortion clinics in that state, this morning the Justices then turned to interpreting the U.S. Code – specifically, a provision that prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun.  At the end of the oral arguments in United States v. Castleman, there seemed to be dissatisfaction with the interpretations advanced by both sides, possibly leaving room for a compromise suggested by Justice Elena Kagan.

Arguing on behalf of the United States, Assistant to the Solicitor General Melissa Sherry began by reminding the Court that Congress enacted the provision at issue, 18 U.S.C. § 922(g), to protect battered women and children and to close a “dangerous loophole” that had been created because domestic abusers were often convicted only of misdemeanors, rather than the felonies that might have resulted if their victims had not been family members.  Some Justices expressed dissatisfaction that the statute might treat “domestic violence” different than other kinds of “violence”; Justice Antonin Scalia, for example, asked why the term “violence” wouldn’t cover any abuse that creates harm.  Much of Sherry’s time at the lectern, though, was spent responding to efforts by the Justices to flesh out the scope of the rule that the government was espousing.

After Sherry told the Court that a defendant cannot cause bodily injury without using physical force, so that it did not matter that the Tennessee law under which Castleman was convicted did not have “physical force” as an element, Justice Anthony Kennedy asked Sherry whether physical force would be involved if someone with a camera told the would-be subject of a photo to back up two steps, causing the subject to plunge over a cliff.  Sherry answered that it would.  That led Chief Justice John Roberts to complain that the government’s argument lacked any limiting principle at all.  If he were to do the same thing – for example, pushing someone into a wall – to two people, but only one were injured, would that mean that physical force was only involved in the incident resulting in injury?

If the Justices were worried that the government’s position would sweep too much conduct into the purview of Section 922(g), during the argument of Charles Rothfeld, representing respondent James Castleman, they seemed to have the opposite concern – that is, that Castleman’s position would result in conduct that Congress would have intended to fall under Section 922(g) being excluded.  In the first few minutes of Rothfeld’s time at the lectern, he fielded a skeptical question from Justice Sonia Sotomayor, who told him that he was suggesting that someone can commit a serious crime without repercussions under the statute because there was no “violence” involved; it was followed shortly thereafter by a comment from Justice Stephen Breyer, who suggested that he “couldn’t believe that Congress would write a statute that did so little.”  That prompted Justice Scalia to suggest archly that, even if that was Congress’s intent, it “wouldn’t be the first mistake that Congress has made.”

Rothfeld pushed back against the idea that his interpretation would be under-inclusive or might somehow create or perpetuate a “loophole.”  The loophole that Congress was trying to correct with Section 922(g), he argued, resulted when people who engaged in conduct that would be a felony in normal circumstances instead had their charges downgraded to a felony because it involved a family member.  But Congress was not, he emphasized strongly, trying to broaden the scope of Section 922(g) to extend to less serious conduct.

These competing concerns of over- and under-inclusiveness eventually prompted Justice Elena Kagan to propose a middle ground:  the Court could agree that convictions based on conduct resulting in bodily injury would constitute a misdemeanor crime of domestic violence, but it would exclude convictions based on “offensive touching” – which, she suggested, “just goes too far.”  Predictably, neither side liked this alternative.  Sherry cautioned that, in at least fourteen states, the laws don’t contain separate provisions for offensive touching or bodily injury, and the state court records don’t often make clear what the basis for a conviction is.  On Rothfeld’s end, excluding convictions based on “offensive touching” wouldn’t help his client, whose indictment specifically rested on the infliction of bodily injury.  But the possible solution seemed to gain support from some of the other Justices.  Whether it will have five votes, however, remains to be seen.

Recommended Citation: Amy Howe, Argument report: Balancing over- and under-inclusiveness, SCOTUSblog (Jan. 15, 2014, 4:10 PM),