SCOTUS Today: The Justices Show Again That They Are Not Politicians in Robes

A short note about the Supreme Court’s decision today in Borden v. United States, in which it considered whether a felon-in-possession gun charge qualified as a “violent felony” under the Armed Career Criminal Act (“Act”), 18 U. S. C. §924, which provides enhanced penalties for criminals convicted of certain firearms offenses who have at least “three previous convictions . . . for a violent felony or a serious drug offense.” The case centered around the Act’s definition of a “violent felony” as a “crime punishable by imprisonment for a term exceeding one year” that either “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the elements clause) or “involves conduct that presents a serious potential risk of physical injury to another.” The Court concluded that a crime of mere recklessness did not contain the mens rea that would fall within the statute’s “elements clause.” This holding is certainly of interest to accused career felons whose latest misconduct is reckless but not violent, and to those who represent them. But that is not why I write about it.

A persistent theme of this blog is that the argument widely conveyed in the popular press and elsewhere that the Justices are mere agents of the presidents who appoint them, and that their opinions reflect political bias as much as judicial philosophy, is simply wrong. Of course there are cases in which Justices of the “living constitution” school of jurisprudential liberalism stand together in holding in favor of a liberal Democratic president’s view, just as there are cases in which Justices of the “originalist” school of jurisprudential conservativism stand together in favor of a conservative Republican president’s view. But jurisprudential liberalism and conservatism are not the same things as political liberalism and conservatism, and the Court’s conduct in fact belies the myth. Only a few days ago, the Court decided Van Buren v. United States, a computer crimes case in which the three Trump appointees joined the three nominally liberal Democratic-president appointees, narrowly construing a statute against the opposition of the other three conservatives. I discussed what I think that division represents in an earlier post.

Today, I note the interesting lineup in the Borden case. Here, the majority opinion was written by Justice Kagan, who was joined by Justices Breyer, Sotomayor and Gorsuch, with a concurrence by Justice Thomas. Justices Kavanaugh dissented, and was joined by the Chief Justice and Justices Alito and Barrett. The myth holders might have predicted a 6-3 split along what they believe are pure liberal/conservative lines. What they got was essentially the opposite—a 6-3 decision with a majority composed of both liberals and conservatives, the latter disagreeing with other conservatives and with the Trump administration that argued against the result that the majority reached. There are other interesting aspects of the case including Justice Kagan’s developing use of a textualist methodology favored by judicial conservatives, and the dissent of Justice Kavanaugh that seeks to put literalism on the back burner for what he argues Congress meant but didn’t say. There also is a certain arguable schadenfreude that seems to have emerged in Justice’s Kagan when she writes in opposition to Justice Kavanaugh.

All in all, a case of limited interest, but a Court of quite a bit of it.

By attorney Stuart Gerson of Epstein Becker Green, former Acting Attorney General of the United States and Assistant Attorney General for the Civil Division of the Department of Justice: https://www.ebglaw.com/stuart-m-gerson/

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