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June 30, 2016

Highlighting what brought Justice Thomas and Sotomayor together in Voisine

Noah Feldman has this effective Bloomberg commentary about the recent SCOTUS Voisine ruling headlined "When Opposites Converge Over Domestic Violence." Here are excerpts:

Some two-thirds of the states define assault in a way that includes reckless conduct.  The court was therefore under substantial practical pressure to hold that reckless misdemeanor domestic assaults count for purposes of the federal gun law.  If it had not, the federal law would have had to be changed or else it wouldn't have applied in those states....

Thomas’s vote [in dissent] can be explained partly on the basis that he doesn’t want to infringe gun ownership.  He added a final section to his dissent suggesting as much.  But Sotomayor, who didn’t join that section of Thomas’s dissent, can’t have been actuated by this motive.  So why did the court’s most liberal member join its most conservative?

What Thomas and Sotomayor share in common -- along with being the court’s two members of racial minorities -- is a long-term concern with the overreach of federal criminal law.  Thomas’s worry has to do with federalism and the encroachment of the federal government into state law matters.  Sotomayor’s concern is more with the status of the individual defendant, who may be subject to long federal sentences.

Yet it’s noteworthy that both right and left saw the court’s decision as potentially troubling.  Neither Thomas nor Sotomayor is an apologist for domestic violence.  But both saw the court as extending the reach of federal criminal law unnecessarily under the shadow of concern about the dangers of domestic violence.  In their own way, each tries to be a conscience on a court that often acts pragmatically.  This time, the two consciences converged.

Prior related post:

June 30, 2016 at 10:18 AM | Permalink

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suggestion Sotomayor wrote first two sections: http://www.gwlr.org/voisine-v-united-states-the-supreme-court-just-says-no-again-to-domestic-abusers-seeking-to-possess-firearms/

Posted by: Joe | Jul 1, 2016 10:29:12 AM

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