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Re-Argument analysis: The votes are not there to sustain the residual clause

Re-Argument analysis: The votes are not there to sustain the residual clause

When the residual clause of the federal Armed Career Criminal Act (“ACCA”) first came before the Court in 2007 in James v. United States, Justice Scalia called it “shoddy draftsmanship” and a “drafting failure” of Congress.  In four subsequent cases, all members of the Court expressed their frustrations with the statute, and in 2011, in Sykes v. United States, Justice Scalia flatly called for the Court to strike it down as unconstitutionally vague.  Yet despite these strong criticisms from the Third Branch, Congress has not modified the statute.  So yesterday, at a re-argument of Johnson v. United States for which the Court had expressly directed the parties to brief the constitutional vagueness issue, Justice Scalia said this:

“If Congress hasn’t done it” — after almost a decade of confusion — then “it seems to me that our job is over.”

The impression from a review of Monday’s argument transcript is that Justice Scalia is correct.  While guessing about results from oral argument is always risky, it seems there may be only one or two votes to not strike the residual clause down.  Indeed, depending on how Justice Scalia writes the opinion (yes, I am guessing even at the assignment), all the Justices may just go along and restrict their analysis, and qualms, to this one, unique case only.

The issue, simpliciter

As discussed in earlier posts, the specific question in this case is whether possession of a short-barreled (“sawed-off”) shotgun counts as a “violent felony” under a catch-all clause at the end of the ACCA, 18 U.S.C. §924(e)(2)(B)(ii).  This matters only to four-time felons, but for members of that exclusive club it is quite important, because if a defendant does have three prior “violent felony” or serious drug convictions, then his fourth felony conviction requires that he be mandatorily sentenced to a minimum fifteen-year prison term.

Johnson, an unsympathetic Aryan Liberation member convicted of unlawfully possessing many guns, received such a term because the trial judge found that his prior conviction for possession of a sawed-off shotgun counted.  But the sentencing judge also said that if the prior conviction had not counted, he would have imposed a sentence of only ten years or less.

The residual clause says that any prior conviction can count as a violent felony, even if it does not require violence or attempted violence as an element, if the offense nevertheless “involves conduct that presents a serious potential risk of physical injury to another.”  Thus, non-violent offenses that still have a “serious potential risk” of violence can count.  The problem with the clause has been that many people – including federal judges and Justices — cannot agree as to what non-violent offenses should “categorically” fit this general definition.  And as Chief Justice John Roberts pointed out at yesterday’s argument, uncertainty about the clause’s meaning, in the face of such a serious mandatory penalty, can pressure defendants to plead guilty to lesser offenses rather than risk fifteen years in jail.  (Some might argue that four-time felons hardly deserve our sympathy in such circumstances.  But the joy – some might say genius — of the Bill of Rights is that it applies to all, even the least attractive among us.)

How did we get to this point?

At the first argument last November, Assistant Federal Defender Katherine Menendez, representing Johnson, did not even raise the constitutional vagueness claim.  Her position was (and remained yesterday) that the Court could avoid the question by simply holding that “mere possession” offenses cannot categorically have a “serious potential risk” of injuring others.  This position is attractive to gun owners as well as the criminal defense bar, but the government argued strongly that people, particularly felons, who possess sawed-off shotguns often do so for violent purposes.  Thus the government argued that the Court should avoid the constitutional question by deciding oppositely to Johnson’s view.  One imagines that the Justices were split on this question after the November argument, and that Justice Scalia lobbied hard that to resolve the split and the general judicial unhappiness with the statute, the Court should rehear the case and focus directly on the constitutional vagueness issue.

Monday’s arguments

In light of the Court’s expressed interest, Menendez did a yeoman’s job of standing in as various Justices expressed concerns about striking the residual clause down.  Both Justices Anthony Kennedy and Stephen Breyer expressly asked for “help” early on.  Justice Kennedy, the author of the Court’s 2011 opinion in Sykes, in which a majority rejected Justice Scalia’s constitutional vagueness position, now indicated that he is uncertain, saying with apparent sincerity that he was “at sea on this.”  Even Justice Breyer seemed almost to regret the confusion that his 2008 opinion for the Court in Begay v. United States – which was a product of the residual clause itself — has generated.  Perhaps both Justices will now swing to some version of Justice Scalia’s vagueness view.

Justices Elena Kagan and Ruth Bader Ginsburg too asked questions seeking guidance: how could Congress write a better statute?  How can the Court strike down this clause without harming the interests of similar statutes?  While Menendez responded to such questions, she hewed closely to her line:  the Court’s unique, repeat experience with the residual clause should lead to striking it down, whether or not a viable legislative correction can be written.

Interestingly, Justice Sonia Sotomayor did not ask a single question.  This is unusual for her.  Perhaps this indicates acceptance of the vagueness attack, or perhaps she was just having a quiet day.  But I would count her as a likely joiner, if Justices Kagan and Ginsburg also vote with Justice Scalia.  Her general concerns about federal criminal law in the past have been similar.

Justice Thomas did not ask a question, as is his norm.  But in James in 2006, he expressed his own constitutional concern about statutes that impose higher penalties based on the facts of prior convictions.  Justice Thomas believes that such sentencing statutes violate the Apprendi rule that requires juries and not judges to find facts that increase statutory sentence ranges, and that the exception to this rule for the “fact” of prior convictions announced in Almendarez-Torres is simply wrong.  He cannot be counted as a vote for the residual clause.  Indeed, Justice Kennedy came close to this persistent Apprendi issue yesterday, when he mused “it’s as if it’s a new crime.”  It seems unlikely that the Court would use this case as a vehicle to take on the Apprendi prior conviction issue, and Justice Breyer, the author of Almendarez-Torres, will certainly want to avoid it.

This leaves Justice Samuel Alito.  A career federal prosecutor, he has been a consistent supporter of vigorous application of the residual clause against many repeat offenders.  He immediately opened the argument with the government’s hardest questions for Menendez.  But there seemed to be little real interest among his colleagues.  It is possible to imagine an eight-to-one decision here, or even nine-to-zero if Justice Alito decides that some fights are just not worth fighting.

The government’s argument

The government signaled the importance of the case (as well as, perhaps, the paucity of available oral arguments for lawyers in the Solicitor General’s office) by sending longtime Deputy Solicitor General Michael Dreeben to argue.  Dreeben is well known for his understated and calm presentations; rather than disagreeing directly with a Justice, he may say things like (as he did yesterday) “I don’t think the Court has to go nearly that far, Justice Scalia.”  But make no mistake: Dreeben is as vigorous an advocate for the government’s views as there is.

The Chief Justice signaled early on that his growing overall concern about federal prosecution policies (seen in Yates v. United States, earlier this Term) extends to the residual clause: because the government’s policy is to seek guilty pleas for the most serious provable offense, Chief Justice Roberts noted that defendants “have to interpret the vagueness” in evaluating possible outcomes.  When Dreeben gently said that was “not quite right,” the Chief responded that it was “an exaggeration, sure,” but he did not seem mollified.

Similarly, Justice Breyer asked for “a saving construction” of the statute, as Justice Kagan also appeared to do.  These are not good signs for the government’s position.  Justice Kennedy was also struggling to find a way to preserve the clause, but seemed doubtful.  Finally, when Dreeben indicated that “serious questions” would be raised by possible rationales the Court might use to strike down the statute, Justice Scalia twice repeated that “[w]e would never say that.  We would never say that.”  Justice Scalia may be speaking with authority; his opinion for the Court may already be in rough draft.  He appeared to be assuring his colleagues: our opinion will be narrow, but dispositive.

In closing

In three minutes of rebuttal, Menendez was not asked a single question, which is unusual and likely a good sign for her client.  She closed by arguing that her client should win under almost any approach: either strike the statute down entirely; or do so as applied to possession offenses generally; or just rule that Johnson’s possession of a sawed-off shotgun does not fit the “potential violence” definition.  By soft-pedalling its policies on applying the residual clause, the federal government provided the best possible defense for keeping the statute in force.  And even if the Court strikes it down, one can imagine some harsh congressional “fixes” in response that will keep federal defenders in business.  But yesterday’s argument suggests that the Court will no longer work hard to sustain this statute.  The only question will be how successful the Justices are in cabining their rationale to strike it down.

Recommended Citation: Rory Little, Re-Argument analysis: The votes are not there to sustain the residual clause, SCOTUSblog (Apr. 22, 2015, 3:11 PM),