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June 24, 2019
Gundy, Rehaif and Davis, oh my: object lessons in results-oriented jurisprudence
With apologies to Dorothy and with uncertainty about just which Justices should be cast as the Tin Man, Scarecrow and Cowardly Lion, the title of this post is meant in part to reflect how I am feeling overwhelmed trying to process the results and votes in three big federal criminal justice cases over the last three workdays, namely Gundy v. US, 17-6086 (S. Ct. June 20, 2019) (available here; discussed here), Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here), and US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here).
Beyond being overwhelmed by 150+ pages of dense SCOTUS text, I am also struck by my sense that so many of the Justices in these cases have had their opinions shaped by the likely or feared results of a ruling one way or another. To this end, this passage from the majority opinion penned by Justice Gorsuch today in Davis caught my eye:
In the end, the dissent is forced to argue that holding §924(c)(3)(B) unconstitutional would invite “bad” social policy consequences. Post, at 34. In fact, the dissent’s legal analysis only comes sandwiched between a lengthy paean to laws that impose severe punishments for gun crimes and a rogue’s gallery of offenses that may now be punished somewhat less severely. See post, at 1–2, 30–34. The dissent acknowledges that “the consequences cannot change our understanding of the law.” Post, at 34. But what’s the point of all this talk of “bad” consequences if not to suggest that judges should be tempted into reading the law to satisfy their policy goals?
I am not inclined to use this post to rail against results-oriented jurisprudence, in part because I think all jurisprudence is results-oriented in one sense or another. But with Gundy, Rehaif and Davis all so new and raw, and with surely lots of fall-out and follow-up to flow from these decisions, I could not resist a post spotlighting a little (Emerald City) legal realism. And with Haymond still in the works, perhaps even the Sixth Amendment Wizard will be revealed before too long.
P.S.: If anyone is eager to cast certain Justices as the Tin Man, Scarecrow and Cowardly Lion (or the Wicked Witch or Glinda or the Wizard or Auntie Em or even Toto), feel free to have at it in the comments.
UPDATE: Here are links to the SCOTUSblog analyses of these opinions:
On Gundy by Mila Sohoni, "Court refuses to resurrect nondelegation doctrine"
On Rehaif by Evan Lee, "Felons-in-possession must know they are felons"
On Davis by Leah Litman, "Vagueness doctrine as a shield for criminal defendants"
June 24, 2019 at 02:08 PM | Permalink
Comments
Kagan for scarecrow in Gamble. I'm convinced she's afraid to vote to overturn any precedent in the false belief that that will have any impact one way or the other on the risk of the court overturning Roe.
Posted by: Poirot | Jun 24, 2019 5:20:22 PM
The Gundy plurality for scarecrow. A totally fallacious reading of the statute in order to avoid invoking the non-delegation doctrine, all out of a fear the precedent might be extended to the administrative state. Alito for cowardly lion, refusing to strike down the provision because of the unsympathetic defendant. A 4-4 affirmance would give the court another chance to revisit the doctrine with a full court in another case invoking the same law, but Alito was just happy to let the defendant rot for years in prison for regulatory offense. Ditto for letting the case be set for re-argument with Kavanaugh on board.
Posted by: Poirot | Jun 24, 2019 7:10:39 PM