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October 9, 2018

Justice Kavanaugh joins the ACCA fray in his first set of SCOTUS arguments

As noted in this prior post, a new Supreme Court, due to the addition of new Justice Brett Kavanaugh, got started working this morning by hearing two cases concerning the application of the Armed Career Criminal Act.  Via SCOTUSblog, I see the oral argument transcript in Stokeling v. United States is available on at this link and the transcript in United States v. Stitt is at this link.  Helpfully, this additional post from SCOTUSblog provides these highlights:

In Stokeling v. United States, about whether a state robbery offense that includes “as an element” the common-law requirement of overcoming “victim resistance” is categorically a “violent felony” under the ACCA.

This argument has some moments that even young spectators seem to enjoy, such as when Roberts describes having his law clerks try to pull a dollar bill out of his hand while he held tight. (This was in response to an argument in the petitioner’s merits brief that “robbery can … occur where the offender does no more than grab cash from someone’s closed fist, tearing the bill without touching the person.”)

“It tears easily if you go like this,” Roberts says to Brenda Bryn, the lawyer for petitioner Denard Stokeling, motioning as if to tear a bill in half. “But if you’re really tugging on it … it requires a lot of force, more than you might think.”

Justice Sonia Sotomayor asks about whether a “ordinary pinch” can involve sufficient force to break the law. And to demonstrate, she pinches her neighbor on her right, Justice Neil Gorsuch. At that moment, he is lifting his coffee mug for a sip, and his wide-eyed reaction to being pinched suggests a mix of bemusement and mild alarm.

Whenever a justice asks a question, Kavanaugh looks down the bench at his colleague. He sometimes dons his reading glasses, and he jots notes. We cannot see whether he has his trademark Sharpie marker.

At 10:25 a.m., Kavanaugh has his first question, asking Bryn about her arguments relating to a 2010 Supreme Court ACCA decision, Curtis Johnson v. United States. “In Curtis Johnson, you rely heavily on the general statements of the court, but the application of those general statements was to something very specific: Battery and a mere tap on the shoulder,” Kavanaugh says to Bryn. “And all Curtis Johnson seemed to hold was that that was excluded. So why don’t we follow what Curtis Johnson seemed to do in applying those general statements to the specific statute at issue here and why wouldn’t that then encompass the Florida statute, which requires more than, say, a tap on the shoulder?”

In the second argument, for the consolidated cases of United States v. Stitt and United States v. Sims, the question is whether burglary of “a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as ‘burglary’” under the ACCA. Kennedy apparently decides that one hour of argument about the ACCA is enough, and he slips out at the break between the two arguments.

The Stitt and Sims argument will lead to questions about cars with mattresses, homeless people living in their cars in New York and Washington, and unoccupied recreational vehicles and campers.

Alito tells Erica Ross, an assistant to the solicitor general arguing that burglary of an unoccupied mobile structure should count as a strike under the ACCA, that the court has “made one royal mess” of its interpretations of the federal statute. Ross says that is something the court may need to think about in “some case,” but “I apologize … for continuing to bring us back to this case.” This simple point really tickles Justice Clarence Thomas for some reason, and he laughs heartily for several seconds.

Kavanaugh asks more questions in this second argument, though he also loses a couple of what I call “faceoffs” — when two justices battle for the floor, continuing to speak until one relents. He defers to Justice Ruth Bader Ginsburg at one point, and to Kagan at another. (Although the rule of thumb is that a junior justice ought to defer to a senior colleague in such situations, that rule is not always observed.)

Kavanaugh will have several extended colloquies, appearing more at ease with each one. Several times, Jeffrey Fisher of Stanford Law School, the court-appointed lawyer for the respondents in the second case, begins his answer by saying, “Well, Justice Kavanaugh, …” It is in those tiny moments that the reality sinks in that Brett Kavanaugh of Maryland is now an associate justice of the Supreme Court of the United States.

October 9, 2018 at 06:17 PM | Permalink


All the hair-splitting over ACCA is necessitated by the statute . . . but is also absurd. It would be far better to have a smooth ramp-up of the sentence based on priors, rather than the sharp increase the ACCA provides, based on a specific definition.

Posted by: William Jockusch | Oct 9, 2018 11:07:41 PM

The problem here is one of federalism and the fact that both parties only give lip service to the concept when it benefits them. Each state (and, to a lesser degree, each territory and tribe) gets to draft its own criminal code. It is inconceivable that all of these statutes will be exactly the same. Yet, many federal statutes (not just ACCA) assume that there are generic criminal laws that most states have that are exactly the same in all of these states.

There are several different ways to skin this proverbial cat that would be better than the current mess. First, Congress could actually define the key elements in state offenses (including whether it wants the courts to use a categorical or modified categorical or "actual offense" approach in determining which offenses and convictions qualify) that would count as a qualifying offense. Second, Congress could focus on sentence length (either actual or the authorized maximum or minimum sentence) rather than offense. Third, Congress could defer to state labels (i.e. if the state classifies an offense as robbery, it counts).

I am not optimistic that Congress will fix these statutes any time soon, but it would at least make things clearer if they did.

Posted by: tmm | Oct 10, 2018 10:55:35 AM

I'm not somebody who thinks my laws make more sense, but Virginia uses a Common Law Robbery and it seems to intuitively make sense. Just make it a use of force separate from and not incidental to the taking that was necessary to overcome the resistance of the owner of the property.

Washington DC has the most absurd Robbery statute where taking a wallet from a pants pocket near the victim counts as robbery when the only force is the force used in lifting up the wallet. I think you could poll fifty people on the streets and almost none of them would think that was a robbery.

You shove somebody and grab something, that's a robbery. You pull on something in a tug of war but never touch them otherwise, just a heavily contested larceny.

Posted by: Erik M | Oct 10, 2018 6:25:57 PM

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