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SCOTUS News, April 20th, 2018: No Ordinary Case

SCOTUS only released two opinions this week. Upon inspection, though, it’s easy to see why. Both Wilson v. Sellers and Sessions v. Dimaya address serious issues, and in the latter case, nearly one hundred pages worth of writing from the Justices.

Wilson v. Sellers

How does a federal habeas court determine the reasoning of a state court conviction, when there are no reasons given?

Georgia sentenced petitioner Wilson to death. A lengthy appeals process followed. The case went to a state habeas court, which rejected Wilson’s case. The Georgia Supreme Court (GSC) then denied Wilson’s appeal. Wilson argued that trial counsel should have introduced new evidence at his state habeas trial, but chose not to. The argument against Wilson is that this new evidence needed to show deficient assistance of counsel, or that counsel prejudiced him. Time and again, courts at various levels ruled that Wilson’s new evidence failed to show these things. This led to a District Court habeas claim at the federal level, which upheld prior denials and dismissals of Wilson’s case. At the federal level now, Wilson appealed to the 11th Circuit.

The 11th Circuit reversed, ruling that the District Court used the wrong method for determining the GSC’s reasoning. The District Court affirmed Georgia’s ruling, but did so by “looking through” the GSC’s summary decision affirming the state habeas court. Instead of applying this – notably common – shortcut, the 11th held that the District Court should have interrogated the arguments presumed to have fueled the GSC’s ruling. In a second, en banc look at the decision, the 11th split 6-5, deciding that the District Court needed to identify the specific reasons for their affirmance. This went against many other Circuits’ methodologies, and so found its way to SCOTUS.

And SCOTUS reverses the 11th. Writing for the majority, Justice Breyer cites an opinion authored by the late Justice Antonin Scalia. That case addressed similar ambiguities in the search for a lower court’s reasoning. In Breyer’s own words: “Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”

The upshot: lower courts’ reasoning should be presumed reasonable. Otherwise, why would a court let a decision stand in the first place? Breyer points to a common practice that courts of review often employ. When an appeals court makes a summary judgment, they imply that they do not find significant fault with the lower court’s reasoning. The “look through” principle thus vouchsafes the reasoning held and used by lower courts. And, of course, if a court of review has “a different basis for its decision than the analysis followed by the previous court,” that court has the prerogative to explain themselves.

It’s a handy bit of streamlining, and one with a healthy amount of support throughout the Circuits. But in dissent, Justices Gorsuch, Thomas, and Alito would go further. They don’t like the idea of the “look through” rule, and reject that presumption. A summary judgment, they contend, is just that: an agreement with a lower court’s judgment, not necessarily with its reasons. It would not be difficult, they argue, for “the Georgia Supreme Court [to] simply issue a one-line order denying an application for a certificate of probable cause that indicates agreement with the result the superior court reached but not the lower court’s reasons for rejecting the petitioner’s claim.” (emphasis ours.)

In addition, the precedent the majority relies on originally meant to safeguard only state-level judgments during the state-level appeal process. The “look through” presumption was never meant to rise to the federal level. To the dissent, this whole thing seems like a distinction without a difference, and a situation where one line of clarifying explanation by a higher court could suffice to resolve the whole issue.

Nevertheless, the Supreme Court majority holds that a federal (habeas) court should “look through” an unexplained decision to the next most recent state court decision that explained its reasoning. The presumption is that the unexplained ruling relies on the same grounds as the lower ruling.

Sessions v. Dimaya

At first, this case seems simple. In Johnson v. US, decided a few years ago, SCOTUS ruled that a residual clause in the Armed Career Criminal Act (ACCA) was “void for vagueness”, and unconstitutional. This clause intended to define the circumstances of crimes that are violent in nature, but SCOTUS disapproved of its vagueness. Now, in this case, a similar residual clause in the Immigration and Nationality Act is responsible for Dimaya’s deportation for burglary. The clause at issue in this case is not exactly verbatim, though, which has created a sharper split between the Justices than the Johnson ruling did.

This case raises many contentious questions. Chief among concerns, and one of the major sticking points at oral argument, is the clause’s use of the phrase “ordinary case”, and the intractable nature of defining what crimes comprise the “ordinary case”.

The Justices decided 5-4. Gorsuch – rather than Kennedy – cast the “swing” vote. The Justices have varied, wide-ranging opinions. For that reason, we take a fine-grain look below.

Justice Kagan (Plurality, with Ginsburg, Breyer, Sotomayor, and Gorsuch in part)

The “ordinary case” question creates an unconstitutional level of vagueness in the residual clause’s intended catch-all. This violates the Due Process clause, just as the clause in Johnson did. This problem should invalidate the INA’s residual clause. The other invalidating aspect that both clauses share, is an “ill-defined risk threshold”. An armed burglar’s actions create a level of risk, but what level is the proper level to classify the burglary as violent? In sum, Kagan writes, this INA clause has the same problems that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague”.

Kagan also dislikes the practice of having civil penalties that exceed the severity of criminal penalties. (On this point, Gorsuch also agrees.) All of these factors should invalidate the INA clause for Due Process reasons. Meanwhile, the “fact-based”, case-level scrutiny Thomas favors does not invite a more plausible reading of clauses that remain too vague to properly interpret. Nor does it help clarify the “ordinary case” problem.

Justice Gorsuch (concurring)

Gorsuch’s opening salvo sums up his thoughts: “Vague laws invite arbitrary power.” He is, in short, just as unhappy as the plurality with the vagueness of the clause in question, and for most of their same reasons. Much of the language differences between the INA clause and the ACCA clause in Johnson represent a “distinction without a difference”. If the one is void for vagueness, then so the other must be. On this point, it seems surprising that, among the more conservative Justices, only Gorsuch joined the majority: By rendering void laws unlawful, the Court here can entice Congress to write clearer, more interpretable legislation. The practice of refusing to apply vague statutes is a standard practice dating all the way back to English common law.

As with Kagan, Gorsuch shows deference to Justice Scalia’s similar opinion in Johnson. He also rejects Roberts’ argument that the INA clause has not created, and does not create, the difficulties pointed out by the majority. He also takes issue, as Kagan does, with Thomas’ parsing of the particular phrases of the clause, such as the “ordinary case” problem.

The INA clause in this case is just like the ACCA’s residual clause in Johnson. It “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Johnson is largely responsible for originating the void-for-vagueness test for criminal law. Gorsuch views the doctrine as just as important in the civil context, and would apply it to the INA. He sees no meaningful distinction between civil or criminal law when it comes to Due Process concerns. This is especially true when considering such dire consequences as deportation.

Chief Justice Roberts (Dissenting, with Kennedy, Thomas, and Alito)

The main dissent does not agree that the INA clause presents the same ambiguity as the ACCA clause in Johnson. For example, the usage of “substantial” risk in the former is clearer than “potential” risk in the latter. This, and other subtle differences, in fact make all the difference, Roberts contends.

In addition, the “ordinary case” approach overturned by the plurality is problematic, but not sufficient by itself to invalidate a law. As a result, this “ordinary case” approach is not so impossible to apply as the majority thinks. One must simply eliminate the kind of strange, atypical cases that a jurist would not think of when considering what a certain type of crime ordinarily entails.

In addition, Roberts worries about the potential overturning of a significant cornerstone of criminal law, as the wording of the INA clause appears repeatedly throughout other sections of the U.S. Code.

Thomas (Dissenting, with Kennedy and Alito in part)

Thomas agrees that the “ordinary case” approach is unworkable, but unlike the majority, would decline to invalidate it. Instead, he would interpret the INA statute in a constitutional way, or decline to judge the case, as the common law tradition holds. This approach, the rule of lenity, should provide guidance, rather than the far newer concept of void-for-vagueness doctrine. Thomas also takes issue with whether a deportation statute can violate Due Process. Alien law is traditionally under the auspices of the executive branch.

More plainly, and here he is joined by Alito and Kennedy, Thomas explains that Dimaya knew that the type of burglary he committed could result in his deportation. Furthermore, the risks mentioned in the clause are quite clear, because burglary is inherently a violent crime. This should satisfy the idea behind Congress’ usage of the phrase “ordinary case”.

 

All’s Neil That Ends Neil

Whew. One might think that the big story is that Gorsuch – rather than Kennedy – was the “swing” vote in favor of Dimaya. But Gorsuch was relentless during argument, and telegraphed his opposition to the government’s approach months ago. Rather, what makes this case ground-breaking are the very distinct philosophical approaches at odds with each other in the opinions of Kagan, Gorsuch, Roberts, and Thomas.

 

The Crowd and the Algorithm

(US v. Microsoft was also decided this week, in a per curiam opinion. As we have done with past per curiam decisions, and due to the very nature of such decisions, we award no FantasySCOTUS points for this case.)

Gorsuch stunned more than a few prognosticators this week. Unfortunately, those stunned include at least some members of the crowd.

sessions dimaya

Sessions v. Dimaya

A closer look at the read-out, though, shows that the Crowd didn’t miss very widely. Close only counts in horseshoes, hand grenades, and when beating out our wily machine friend, {Marshall}+.

The Crowd got a much better bead on the Wilson decision. Those who hesitated in lumping Thomas, Alito, and Gorsuch with the majority are vindicated here.

wilson sellers

Wilson v. Sellers

It’s still not too late to sign up for FantasySCOTUS! Only about one third of the Court’s cases for this term have been decided so far.

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