Argument analysis: Sometimes argument is not much help
on Feb 23, 2016 at 9:16 pm
Oral argument in Taylor v. United States today was unusually short and, it seems from the transcript alone, not particularly helpful. Indeed, well toward the end of the opening argument of Dennis Jones, who represented petitioner David Taylor, Justice Anthony Kennedy said “I don’t understand where we’re going here.” Justice Elena Kagan also noted that Jones seemed to be making “a different kind of argument” than where he started, and she later told Assistant to the Solicitor General Anthony Yang, who argued on behalf of the United States, that she just wanted to “make sure I understand.” In his rebuttal, when Jones asked the Justices whether they had “any questions” and heard (metaphorically) only crickets in response, he sat down with time still unexpired – an unusual event before the normally “hot” Supreme Court bench.
What is the Question Presented, anyway?
As explained in my argument preview, Taylor was convicted under the federal Hobbs Act robbery statute, for committing two home-invasion robberies in Virginia of people he believed to be marijuana dealers. Not much money, and no marijuana, was actually taken. Prior to a retrial after an initial hung jury, the district court barred Taylor from introducing any evidence that the marijuana had not been grown in Virginia or intended for out-of-state distribution, because whether marijuana is intra- or inter-state is irrelevant after the Court’s 2005 decision in Gonzales v. Raich.
But the language of the Hobbs Act still requires as an element that the robbery “affects commerce.” On appeal, Taylor appeared to be arguing that the government’s evidence had failed entirely to prove that element. But the Fourth Circuit ruled that the evidence was sufficient, and that only a “small” effect on commerce, shown by depleting the assets of drug dealers who “inherently” affect commerce, was required. However, the Fourth Circuit also appeared to state broadly that the government need not introduce “particularized evidence” on the “affects commerce” element at all. This statement (which quite arguably was dictum) set up a conflict with similarly broad statements by the Second Circuit in the opposite direction.
Taylor’s petition for certiorari phrased the question as “whether the Government is relieved of proving beyond reasonable doubt the interstate commerce element” of the Hobbs Act “by relying exclusively on evidence that the robbery … of a drug dealer is an inherent economic enterprise that satisfies as a matter of law the interstate commerce element.” Most of Jones’s argument yesterday was expended merely on determining exactly what this asks.
Today’s argument: confusion
Evaluating the tone of an oral argument from a cold transcript is not always possible. (The audio files of Supreme Court arguments are not released until Fridays after argument.) Still, my read is that the Justices spent at least the first half of their not-quite-an-hour yesterday trying simply to pin down the question.
Jones seemed unable to separate an argument that the government had not proved an “effect” on commerce from an argument that the government had not proved that the marijuana at issue was “interstate.” For example, at one point he answered a question from Justice Samuel Alito by saying that “the effect on interstate commerce … must be proven beyond reasonable doubt … and whether it’s traveled in interstate.” This conflation of two different arguments was confusing, because the “interstate” argument is a non-starter. The Hobbs Act does not require that a robbery affect “interstate” commerce, but rather only “commerce.” And as the Justices repeatedly stressed yesterday, the Raich decision appears to have settled the point that all drugs, whether interstate or home-grown, may be rationally viewed as “affecting” commerce that Congress has the power to reach. That issue is settled, and may well be “a matter of law,” not fact.
But the question whether the government in a Hobbs Act prosecution has to present particularized evidence of “effect,” whether inter- or intra-state, is not settled by Raich. Indeed, when Justice Kagan tried to clear up confusion with Jones, by saying that “I don’t think that the word ‘affects’ is doing much work here,” my first thought was that the late Justice Antonin Scalia might have then intervened: “It doesn’t matter whether the word does work, does it? Congress said the government must prove it, and so it must, no?” But of course Justice Scalia was not there, and Jones merely agreed with Justice Kagan. Although Jones did close by finally stating his position clearly, he then stopped and reserved the remainder of his time.
What question will the Court decide?
If the question as presented by Taylor is, really, was the evidence sufficient to prove “affects commerce,” then the Court’s decision is likely to produce only a footnote in the annals of Hobbs Act law. Yang agreed with the Justices that the government must prove some effect on commerce. His half of the argument, and most of the Justices’ questions, then focused on what exactly is enough to prove that effect, and also on what the best instructional language for the jury might be (a question not really presented by the petition). He pointed out that the federal courts of appeals agree that “depleting the assets” of any business involved in commerce is enough, and that Raich appears to settle that marijuana dealers are involved in “commerce.” Chief Justice John Roberts made some effort to ask some hard questions of Yang, but the Court seemed unable to find a difficult issue on the facts of this case.
There were a few interesting tangential moments. Justice Ruth Bader Ginsburg remarked that it seemed “very odd” that a forty-dollar robbery was charged federally. But Yang explained that this case was only a small part of a larger federal investigation of a regional home-invasion gang. And the Chief Justice and Justice Kennedy both seemed concerned by the long imprisonment sentence imposed on Taylor. When they noted that it was either twenty or twenty-one years, the Chief Justice said “A year’s a year” and Justice Kennedy followed with “which is, to me, one year too many… but whatever.”
The Justices also wondered whether the Hobbs Act would reach the robbery of an individual of only one marijuana cigarette, to which Yang noted that that would raise “a different theory” and explained that the government was not seeking to define “the outer limits of the Commerce Clause” in this case. When Jones tried to begin his rebuttal on the “one cigarette” point, Justice Kennedy quickly shut him down: “That isn’t this case.” Jones said a few more sentences, and when there was no response to his “any questions?” he wisely sat down.
A decision, unlikely to affect much, should issue soon.