Argument analysis: The Justices continue to struggle with the “modified categorical approach”
on Apr 27, 2016 at 9:47 am
Here’s a question for you, Supreme Court fans. What’s more intimidating than arguing before the United States Supreme Court? Answer: explaining to a Supreme Court Justice that she doesn’t understand one of her own majority opinions. Yet that was precisely the situation Assistant to the Solicitor General Nicole A. Saharsky found herself in during Tuesday morning’s oral argument in Mathis v. United States. And she did not blink.
The Justice was Elena Kagan, and the majority opinion she authored was in Descamps v. United States. In Descamps, the Court ruled, by a vote of eight to one, that a federal district court could not use something called the “modified categorical approach” (MCA) to unlock the facts underlying a California burglary conviction in order to determine whether it was a “violent felony” under a federal three-strikes statute. The MCA could not be used, Justice Kagan explained, because the California burglary statute was “indivisible” – that is, it contained a single unitary set of elements.
In this case, petitioner Richard Mathis was convicted under an Iowa burglary statute. A federal district court used the MCA to determine that his conviction qualified as a violent felony under the federal three-strikes statute, holding that the Iowa burglary statute was divisible. The district court found the statute divisible despite the fact that an Iowa Supreme Court precedent had squarely held that the burglary statute, though phrased in terms of alternate “means” of committing burglary, nonetheless contained a single unitary set of “elements.” The U.S. Court of Appeals for the Eighth Circuit affirmed the sentence, saying that the distinction between means and elements is irrelevant to the determination of divisibility.
In defending the Eighth Circuit’s judgment, then, Saharsky may not have had much choice but to argue that divisibility has nothing to do with the distinction between means and elements. But that didn’t make it easy.
“[T]his Court has never adopted a means-elements distinction that turns on parsing State law,” Saharsky started her argument. Alluding to Kagan’s opinion in Descamps, among other cases, Saharsky continued: “In fact, it’s done and said the opposite.”
“Well, I’m not sure that’s true, Ms. Saharsky,” stated Kagan. “[A]ll of our cases . . . use the language of elements. Descamps in the introduction uses the word ‘elements’ ten times. So if we really meant elements or means or whatever, it’s a funny thing – it’s a funny way to write all of our opinions.”
Kagan continued with a description of Descamps, in which Justice Samuel Alito, in dissent, criticized Kagan’s opinion for the Court. “The dissent said, it’s really terrible what the Court just did,” recited Kagan. “It just created this distinction between elements and means. And the majority said, yes, that’s exactly the distinction we’re using, and we think it’s the right decision – distinction. So nine members of this Court thought that the distinction that we were using was a distinction between elements and means.”
A lawyer with less gumption might have been defeated. But Saharsky was undeterred.
“Okay. Well, a few responses,” she said. “I think you’re pointing to the Court’s footnote 2. . . . [I]f we look to what the Court meant in footnote 2, you’re right. It talks about a distinction between means and elements, but the Court’s ultimate conclusion –“
“It’s not just footnote 2, if I could just interrupt,” responded Kagan. “I mean, the footnote 2 comes as a response to the dissent, and the dissent says, this is the problem with the entire opinion . . . . So the whole opinion is this elements focus, which then the dissent attacks.”
During this colloquy about footnote 2 of Descamps, Justice Kagan may have foreshadowed how she would write an opinion in Mathis’s case. In response to Alito’s Descamps dissent, which had raised the specter that already overburdened federal courts might have to dredge through state case law to ascertain whether state criminal statutes are divisible or indivisible, footnote 2 of Descamps stated that there was little “real world” reason to worry. The district court (or immigration court) could look at the charging papers in the case to see whether the prosecutor treated the statute as containing alternative means or a single unitary set of elements.
If the Court were to rule in Mathis’s favor, it would have to explain to lower courts how to cope with the uncertainty of whether state criminal statutes contain means or elements. Should they have to look to state case law, as Mathis contends? Or is state case law irrelevant, as the government contends? On Tuesday, Justice Kagan pointed to footnote 2 as containing at least part of the answer – look to the charging papers.
Saharsky not only accepted Kagan’s gesture in the direction of the charging papers, she welcomed it as constituting the heart of the government’s position. “Well, we think that that general approach is correct, which . . . we understood this to say, just look to the statute of conviction in the Shepard documents,” she said. (Shepard documents, named after the 2005 decision in Shepard v. United States, include the jury instructions or plea colloquy, as well as the charging documents in a case.) The government welcomes any approach that looks to the charging papers or other Shepard documents because that unearths the facts of the case, which the government wants trial courts to see because they usually show that the defendant or petitioner at bar actually engaged in conduct that falls within the generic federal definition of burglary (or whatever other type of statute is involved).
So Kagan and Saharsky agreed that the charging papers are useful in determining divisibility. But Kagan, interpreting her own opinion in Descamps, insisted that looking to the charging documents is a last resort. First, the trial court should look to state case law and model jury instructions to see if they settle the question of whether the state statute contains means or elements. Only if that fails should the trial court make reference to the charging papers, and even then, only for the limited purpose of resolving the means-elements dilemma – not for gauging whether the defendant’s actual conduct falls within the generic federal standard. For her part, Saharsky abjured state case law, wanting to go straight to the Shepard documents.
There is a great deal at stake in this case for federal defendants facing mandatory minimum sentences. As Saharsky asserted, if the Court adopts Mathis’s argument, most state burglary laws would not trigger lengthy sentences under the federal Armed Career Criminal Act. Saharsky also alluded to immigration cases, in which many lawful permanent residents face removal based on prior convictions, including convictions for burglary in the various states. If Mathis were to win in the Supreme Court, the number of removals based on burglary would be far lower than if he were to lose, because the MCA would be unavailable to immigration courts.
Despite Saharsky’s plucky performance, it remains hard to see a path to victory for the government. Kagan is both a sure vote for Mathis and a logical candidate to take the opinion. Justice Sonia Sotomayor’s questions and comments during the argument certainly gave no hint of anything other than a vote for Mathis. Justice Clarence Thomas also seems a certain vote for Mathis, given his concurrence in Descamps, in which he stated that the entire MCA violates the Sixth Amendment doctrine of Apprendi v. New Jersey. Neither Chief Justice John Roberts nor Justice Stephen Breyer tipped his hand during Tuesday’s argument, but both joined Kagan’s Descamps opinion in full.
Justices Anthony Kennedy and Ruth Bader Ginsburg also joined Descamps in full, but it is conceivable (however unlikely) that they might drift toward the government’s position in Mathis. Kennedy’s Descamps concurrence expressed significant agreement with Justice Alito’s dissent – partly on federalism grounds, and partly on the ground that the Armed Career Criminal Act would lose much of its effect if use of the MCA is restricted in the way that Descamps envisions. Nonetheless, he joined the Descamps majority, in part out of a concern that charging papers may contain inaccurate statements of the facts, unchallenged by defense lawyers in cases in which such inaccuracies would make no difference in a plea. Yet, under the MCA, those charging documents could later make the difference in whether the defendant receives a mandatory minimum under the Armed Career Criminal Act or whether the defendant is deported.
Based on his comments during Tuesday’s argument, and on his Descamps dissent, Justice Alito will probably vote with the government in Mathis. Although I would not go so far as to predict that Justice Ginsburg will join Alito, it is possible to at least visualize such a path. In both criminal and immigration cases involving convictions for crimes involving domestic violence, those who are particularly concerned about protecting female and juvenile victims of domestic violence would generally like the government to be able to “unlock the facts.” Domestic abusers often plead guilty to generic assault and battery rather than to specific domestic violence offenses — sometimes because their states do not have criminal statutes specific to domestic violence, sometimes to avoid deportation. Ginsburg may want some leeway in the use of the MCA with such cases in mind.