We try to catch up on what the Court did since we last recorded, but end only making it through the Court's opinions in United States v. Zubaydah and Wooden v. United States.
We try to catch up on what the Court did since we last recorded, but end only making it through the Court's opinions in United States v. Zubaydah and Wooden v. United States.
[Divided Argument theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Will, we finally have a lot of opinions to deal with, some of which have been out for a little while, but I needed to take a minute, try to process them, and figure out what we had to say. We've got a lot to talk about, so maybe we should just jump in. What do you think?
Will: Sounds good. March 11th, already five opinions in the court.
Dan: Yeah. Last time, we talked about Unicolors, that super exciting copyright case.
Will: The ornithology case.
Dan: Yes. The devastating Justice Breyer opinion, but now we've got some slightly hotter ones to talk about, and I don't really know where to start on this. What do you think? I bet you have an instinct, as to what merits the marquee treatment of the things that the court has done in the last week or so?
Will: Well, I think it's got to be the state secrets case or one of the two state secrets cases, United States v. Zubaydah, in part because it has one of the great dissenting duos of the current court.
Dan: Yes. The unexpected dissenting duo we see sometimes. What do you call that? An unlikely partnership. We'll get there. This is also the longest opinion. So, maybe that's a good place to start.
Will: By Justice Breyer again, I'm just saying.
Dan: Justice Breyer, yeah. Where do we start? This is a case about the state secrets doctrine.
Will: Yes.
Dan: Should we explain that or should we set up the facts first?
Will: We'll set the facts first, and we should-- Mr. Zubaydah is a Guantanamo Bay detainee, who was tortured by US forces in Europe, including probably in Poland.
Dan: And Asia, we think too, in Thailand.
Will: Right. Yes, tortured, all over the globe. And there's now a Polish legal proceeding, in which the Polish government would like evidence about exactly what happened to him while he was in Poland. And the Polish government is trying to use a US statute. The Polish government is trying to get evidence about that, that can apparently be produced pursuant to a US statute that allows the production of discovery for use in a foreign proceeding, questions whether to find out some information from Zubaydah, about what happened to him.
Dan: I don't think that's quite right.
Will: Okay. There's a federal statute that sometimes allows the evidence to be sent to a foreign legal proceeding, and Zubaydah's lawyers are trying to get evidence about what happened to him sent to Poland.
Dan: Yeah. So, it's not a full civil case. It's basically an ex parte discovery application--[crosstalk]
Will: Under 28 U.S.C. 1782.
Dan: Yes, that well-known statute that we discuss all the time.
Will: Want to get [unintelligible 00:03:11] procedure of it. I believe Mr. Zubaydah's lawyers want to serve the contractors who tortured him with subpoenas for various evidence that they will send over.
Dan: Yeah. As I understand it, there's different pieces of information that are potentially out there, and one is where this torture happened. We think it's in Poland, has never been confirmed by the government that it's in Poland. The other thing is what happened, which is different. As I understand it, the what happened question, that's not necessarily secret, or at least classified. But the question about where this happened is something that has never been confirmed by the government.
Will: Yeah. I will say just now, the elements of secrecy here are a little bit kind of farcical in a weird way, because we know a lot of what happened here. A lot of these things have been declassified now in our slow reckoning with the government's behavior here. But one version of it is we all know it's Poland but the government has never officially confirmed it. And that's important, that has some magical power that the government has some interest in avoiding saying the magic words. And maybe we don't know for sure-- I gather from Poland's point of view, we don't know for sure what happened in Poland. We know who was tortured, and we know he was held in Poland. We don't know for sure--
Dan: We think we know--[crosstalk]
Will: We think we know, but maybe we need more confirmation. Even if we knew he was held in Poland, there's also some question of linking up the worst of the things that were done to him with where he was at the time.
Dan: By the way, we can't even clearly ask him, because he's in Guantanamo, he's under very intense restrictions about the way he's allowed to communicate. The government-- well, has sort of suggested there might be a way to ask him, we'll get to that in the analysis, but this isn't just your ordinary litigant where you can just get that person to write a declaration because he's been tortured, we don't know his mental state, and he's not really able to communicate with the outside world basically at all.
Will: I mean, yeah, he may well not remember nearly as well. He was not in a good place, obviously. [crosstalk]
Dan: Yes.
Will: It's also just the time dimension. So, part of what was fascinating this case is that argument. The Justices, I think, have not had a case dealing with the Guantanamo Bay detentions in a long time nd it seemed they were not fully up to speed on what was going on there or how all that worked. So, at various points of argument, Justice Breyer questioned, like, "Why is anybody left in Guantanamo? Isn't [chuckles] the War on Terror over?" It seemed to be news to him there are still people there are still. A lot of people there, that was a little alarming. "Has anybody thought about filing a habeas petition? "Why not file a habeas petition?"
Dan: [chuckles]
Will: [crosstalk] --habeas petition pending for like a decade or longer. Similar to questions about like, "Well, can't we just ask your client? Why is your client--" Lawyers had to remind that government they basically can't talk to their client, and he's maybe not capable of communicating.
Dan: And Justice Kavanaugh is going to be deeply familiar with all this stuff, because this has been kicking around in the DC Circuit for really long-- I don't know how many cases he would have dealt with--
Will: Yeah.
Dan: [crosstalk] -Guantanamo stuff, but presumably a lot.
Will: And he made an effort to resuscitate. When Justice Breyer suggested that maybe everybody should be released from Guantanamo, Justice Kavanaugh was going to leap in an argument and remind the government what its argument was, [chuckles] why it still had authority to detain people. But basically, after the court, in Boumediene now 15 years ago, declared that it was really, really important there be habeas corpus jurisdiction over Guantanamo. It then proceeded to not at all supervise the habeas corpus jurisdiction over Guantanamo, and the DC Circuit has been very pro-government in mostly keeping everybody detained. The court appears to have forgotten about them until now.
Dan: All right, so then let's set up the legal issue. So, he's trying to get this discovery. Zubaydah is trying to get this discovery, and the government doesn't want to provide it. The government is not relying on some statute that just says like, "This is a secret, and you can't get it." The government is relying on something else that's a little weird. The state secrets privilege. What is this?
Will: The state secrets privilege.
Dan: Where does this come from? This is the thing. Does this exist?
Will: Good question. The state secrets privilege is at least a little relatively longstanding privilege that for certain things that would otherwise be the government's obligation to disclose, there's just an unwritten exception for-- it's not exactly the same as classified information and it's not exactly the same as the technical categories, but important government secrets. I think it was when the Justices would ground that in Article II. So, I'd say it's a constitutional privilege, sort of akin to executive privilege. Executive privilege is more about the internal deliberations of the executive branch, and the state secrets privilege will be more about the substantive executive power to defend the country or something. I'm not sure there is such power, I don’t think there is. So, it might come from the Constitution, it might just be more like the attorney-client privilege, like the kind of common law privilege that has never been abrogated.
Dan: Presumably, there is some kind of residual authority, of course, to recognize rules of evidence, I guess.
Will: Right.
Dan: That would be the justification.
Will: The idea would be, yes, that before, we didn't have rules of evidence until relatively recently in American history, and then the extent to which the rules evidence permit various common law privileges to apply is a classic evidence law question.
Dan: Okay. So, there's this kind of mysterious, ill-defined state secrets privilege. It's judicially created or it maybe has a more legitimate justification, maybe it doesn't, but we don't have necessarily clear strict guidance on how it should work. And part of exactly how it should work is something that the Justices are talking about here. But the basic idea is someone is trying to get some information and trying to do something in court. Government comes in and says, "Look, this implicates state secrets, would endanger national security." And then, the court will make some finding and exactly what that looks like in the analysis, the court is supposed to apply the subject with a little bit of disagreement, but then the court will say, possibly, "Yeah, we think you don't have entitlement to this information. Sorry, go away."
Will: Yeah. Right. It's a classic balancing test of like, "Do you really, really need this information? Well, even if you do, is there some reasonable probability, reasonable danger that military secrets are at stake? Well, then, sorry, we're just not going to let you do that."
Dan: Yeah. Here, Zubaydah wants to depose these two contractors. They were not employees of the government, but they were contracted by the CIA to perform this enhanced interrogation, as we might say. It's the--[crosstalk]
Will: [crosstalk] We call it torture now, Dan.
Dan: Well, you know. Wants to depose them to get information about what happened. Say like, "What exactly happened to Zubaydah? What did you do?" And the government doesn't want to turn this over. The argument being that we've never confirmed that this happened in Poland, and this might lead to us, the government or someone who would work for the government having to confirm that. And that would endanger national security by endangering relationships with other countries.
Will: Right. Proceeding is happening in Poland. And various Polish officials including the ex-President of Poland have all said it happened in Poland. So, there's a way in which like-- this isn't like a military secret, like, "We're going to tell people," and then they're suddenly going to know the password to login to the President's computer or something. Everybody, I think, knows it was in Poland. A real kick in the teeth, as it turns out, it was not in Poland. It was in the Ukraine.
Dan: But I think maybe the argument is the government officially having to acknowledge it would lead it to be less able to make credible commitments to other countries in the future or something like that.
Will: I think the argument is when we set these black sites up in Poland in the first place, I mean the whole point being to engage in shady and illegal things and avoid detection and jurisdiction, we promised other countries, we will never ever tell that it was here.
Dan: I think the polite word is elimination challenge sites, Will.
Will: And we're going to keep that damn promise, even if [chuckles] nobody left in Poland cares. Because that way, the next time we try to ask some other country where we want to set up our new black sites, they'll know that we really go to the mat to protect their-- That's the national security interest, as I understand it is a credible commitment to future partners in clandestine activities.
Dan: Yeah. Okay. So, that's the setup. This had worked its way through the court system, and the Ninth Circuit had said, "State secret privilege does not apply." There were a lot of dissents in response to a petition for rehearing en banc, and now it gets to the court. We're going to have a majority opinion by Justice Breyer, for which there's a small chunk of it that is a plurality and not a majority, but joined in full by Chief Justice Roberts, joined in most by Justices Kavanaugh and Barrett, enjoined in part by Justices Thomas and Alito.
Will: And part by Kagan.
Dan: Yes, sorry.
Will: Different parts but yes.
Dan: And then we have a concurrence by Thomas. We have a partial concurrence by Kavanaugh, enjoined by Barrett. We have a concurrence in part and dissent in part by Justice Kagan. And then, we finally have a dissent by Justice Gorsuch, joined by Justice Sotomayor.
Will: And the dissent is the most interesting part. I think the rest we can clear through.
Dan: Yeah. Well, the bottom line is here at the court, the privilege applies, right?
Will: The privilege applies, but maybe you can try again. We're not saying for sure. The court definitely agrees that the Ninth Circuit was wrong. The Ninth Circuit had said, "The privilege doesn't apply because this is already public. And the privilege doesn't apply, because these contractors don't work for the government anymore." So, even if they say it's Poland, it's not like the US is saying it's Poland. And the court rejects both those views. You can't make the contractors say it's Poland, even though everybody knows it's-- Justice Kagan spent a lot of time at argument trying to float a compromise solution in which we don't call it Poland, we call it Shmoland or some other place. [chuckles] We say "the place." We just never say what it is, but the place. But we do nail down exactly what happened during these dates. And then if everybody knows that's Poland, it's not because we told them.
As I read it, the majority doesn't reject that possibility. They just say that's not what Zubaydah asked for in this litigation, and they're not prejudging whether or not he can go back and try for the Kagan [crosstalk] again.
Dan: Yes. But the court is saying that this particular action should be dismissed, right?
Will: Yeah. This action should be dismissed--
Dan: There's no remand to go back and take a closer look and see if we can tweak it in such a way as to get the information he wants, but not the information about confirming or denying Poland.
Will: Because this is clearly a Poland case. And in Poland, still a secret, despite this-- I guess this podcast is going to be classified or something. But Poland is still a secret. So, his case is dismissed. But maybe he and his lawyers can still start over. It's not clear whether they can or not but I'm sure they're reading Justice Kagan's concurrence very carefully and trying to figure it out. And Thomas and Alito would have gone farther, they would have sort of rejected him even at kind of an earlier stage.
Dan: Okay. You want to talk about the dissent, maybe we should talk about the dissent and then we can work backwards from that. We have the mostly majority sort of saying, "Look, the responses would tend to confirm or deny the existence of the site in Poland." Short version of the opinion that's mostly a majority is just because the specific information that he's seeking and the way he's seeking it would tend to confirm or deny the existence of the site in Poland, and because his need for the information as the court sees it is not that great, and because the national security considerations are important. All those things is you can't get the information.
Will: Yep.
Dan: But then, let's go to the other extreme and let's talk about this dissent. Very powerful, heated dissent joined by Justice Gorsuch, who's arguably, at least one of, or maybe one of the two most conservative Justices just depending on how you measure these things. And then joined by Justice Sotomayor who is, I think, by all accounts, the most liberal Justice on the court, and it's a very long dissent, sort of saying that this is wrong. So, channel your Justice Gorsuch and tell me what Justice Gorsuch is saying, Will.
Will: Well, the first sentence because you've a sense of where we're going, "There comes a point where we should not be ignorant as judges of what we know to be true as citizens."
Dan: He likes this phrasing of what we know to be true. Do you remember Ramos v. Louisiana?
Will: Yeah.
Dan: He uses that phrase several times. I don't really know if it's a reference to something that I'm not getting, but it's become his catchphrase.
Will: I think there is a judge-friendly quote that's kind of like this. I mean, it's basically core to his style of judging, that there's Justice Gorsuch's view--
Dan: You call it like you see it, don't pretend that things are true when they're not true or something like that?
Will: Well, yeah, fundamentally. The law comes from the Constitution and the text, like fundamental documents, the judges have relatively little authority to change, they don't like it. And then, they're in the law, all these foggy doctrines, whose purpose is to keep judges away from the truth in the text, like precedent, but also like the state secrets doctrine. And he's impatient with these things. He wants to clear them away and get back to fundamentals. In some sense, we call this a surprising duo, and at some point, this is going to become the least surprising duo on the court, I think, because Justice Gorsuch is very methodologically conservative. He's one of the most originalist conservative, textualist anti-precedent judges in the court. And Justice Sotomayor is liberal in a different sense. But when there's this intersection of a constitutional right, like the right to trial by jury or the Fourth Amendment or something where the original meaning can be read in a really individualistic rights protecting way, I think we're often going to see Justice Gorsuch and Justice Sotomayor meet in the back there as the two people most willing to say, let's give this some new--
Dan: Yeah. As I read Justice Gorsuch, he's not saying there's no such privilege, I think, but he's saying, it's limited to cases where if you look at the Constitution, this would really exceed the powers granted to the other branches. Like, this would actually require information, would actually violate the separation of powers. Am I reading that correctly?
Will: I think that's right. I guess there's at least like three levels going on. This opinion is not as technically precise as some of Justice Gorsuch opinions, I think. But I think he's thinks the state secrets privilege is narrower in terms of where it comes from and what its historical basis is than a lot people think. I think he also thinks judges, just the court's track record of the state secrets doctrine is not very good. So, he goes back, one of the original cases that produces the state secrets doctrine, United States v. Reynolds is one where they deferred to our government [unintelligible 00:18:29] secret. And he says in retrospect, that was probably a mistake and cites some later accounts that suggests that-
Dan: They were just kind of covering up their own negligence. It's not great.
Will: I think that's an additional point. It has less scope, and then also, we should be aware that we've been chumps, we've been owned by the government in the past, so we shouldn't just blindly accept these claims. And then as to this case, in particular, he thinks that the government really is just trying to avoid embarrassment, he says, and that's not a state secret.
Dan: Yes. One paragraph that I zeroed in on that goes, more to the kind of maybe, I don't know which order we're talking about the levels, but the level of how broad is this privilege to begin with, rather than-- and then, there's the other level of, we should really be careful to make sure that this isn't just the government kind of seeking to avoid embarrassment. But he says, "None of this suggests that the states secrets privilege is inconsistent with separation of powers. Just simply that the privilege is no blunderbuss and courts may not flee from the field at its mere display. Instead, when the executive seeks to withhold everyman's evidence from a judicial proceeding, thanks to the powers that enjoys under Article II, that claim must be carefully assessed under the competing powers, articles I and III vested in Congress and the judiciary." And he's coming at it that litigants are entitled to everyman's evidence. Basically, if there's evidence out there, that's relevant, probative in your case, as a presumption you should be entitled to it and there needs to be kind of like a fairly strong justification for that not to apply.
Will: Yeah, right. Exactly right. He's trying to make clear it's not just one government interest or one constitutional interest that are one side of the balance and nothing else neither side. And once he sets it up that way, of course, you're primed to be a lot less deferential. I'm not positive I agree with Justice Gorsuch on the first level, that the state secrets doctrine can only come from Article II. I and maybe you are more willing to accept the idea that there might be some unwritten general law doctrines that still are enforced in federal courts, even if they don't come-- if they do have the right historical pedigree and so on. I'm just not totally sold that it has to be an Article II claim to be a state secret.
Dan: Yeah. The question would be like, "When are courts are allowed to recognize new ones?" Because this certainly doesn't have the same historical pedigree as, I don't know, priest penitent privilege, something like that, like something--
Will: I think there's a fight in the opinions between Justice Thomas and Justice Gorsuch about whether or not the state secrets privilege was refuted by Chief Justice Marshall during the treason trial. I don't think Justice Gorsuch was obviously carried the day on that question. Maybe he's right about that. But I'm not ready to say that the King of England could never protect state secrets under common law. I don't know.
But I think his other points are still very well taken. I like the tone and the moves to the dissent, even if I'm not totally sure whether I'm starting in the same place. I admire it. I don't know if I buy it, maybe, but I admire it. One other thing I admire about it is-- I don't know if you remember this, but when Justice Gorsuch was a judge, he was in the Bush White House in the Department of Justice in 2005-2006.
Dan: Yeah. He was in Office of Legal Policy, am I remembering that right?
Will: He was the principal deputy to the Associate Attorney General and managed the Civil Division, I think.
Dan: Okay. Oh, he managed the civil division. All right.
Will: One of the complaints during his confirmation hearing was that he had been involved in defending a bunch of the terror litigation in the Bush administration. Like, 2005 when some of them were still was-- it was pre-Boumediene, there was early stages of what is the jurisdiction over Guantanamo? When that’s happening, the government's always unclear what's your personal responsibility, but he had at least some involvement in disclosure of the torture at Abu Ghraib and rendition of litigation and so on and not on the side he's on now.
Dan: Yeah, that's interesting. He's really writing this, he's kind of a real skeptic, like a civil rights skeptic on the outside.
Will: Yeah. Well, he doesn't talk at all, whether that experience informs his views. I kind of wonder if it did.
Dan: I mean, it's hard to imagine that it didn't inform them in some way.
Will: [chuckles] Right. You can imagine two versions. You can imagine thinking like, "Those were real state secrets. I was fighting for real estate secrets back then. But at this point this is all just politics." Or, you could imagine thinking like, "Boy, some of the stuff I did for my clients back then are things that I'm not sure the court should have let us get away with," [chuckles] which is sort of the Robert Jackson famously had this view in Youngstown, more or less saying, "There are things that I told, that I recommended to the President, as well as Attorney General, but now as a judge think were wrong." So, I wonder if this is Gorsuch's Robert Jackson moment.
Dan: You've already sort of summarized what he said. But let me just read part of the final paragraph to really hammer home some of the rhetoric here. Basically says, "This case has nothing to do with fears about courts being unable to apply familiar legal tools. Really, it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and to avoid or at least delay further embarrassment for past misdeeds. Perhaps at one level, this is easy enough to understand the facts are hard to face. We know already that our government treated Zubaydah brutally, more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls rectal rehydration. Further evidence along the same lines may lie in the government's vaults, but as embarrassing those facts may be, there is no state secret here. The courts duty is to the rule of law and the search for truth. We should not let shame obscure our vision." That’s pretty strong.
Will: Yeah.
Dan: Anything else you want to say about the separate opinions in this case? Justice Kagan disagrees with the decision of the court not to remand. So, a narrower, [unintelligible [00:24:26] already noted that she wanted to kind of do something a little bit narrower here. She wanted to remand. We have a very short opinion from-- Justice Kavanaugh really likes to write these kinds of concurrences, where he sort of is like, "Here's how I think we should approach these kinds of cases. Here's how I understand the relevant test to be." And he says, "Look, here's how I want it to work, here's how I understand it to work. There's an assertion of the privilege, the outset by the government, the court must make a threshold judicial inquiry to determine whether this should be applicable. The court should then accept the assertion of privilege if the requester only has kind of a dubious need for the requested information here. And even if there's a strong need, the court should not necessarily demand to examine the evidence itself." I'd say a fairly deferential approach.
Will: I just want to observe one of the things about these separate opinions, which is really just one more observation about Justice Gorsuch. As I read it, Kavanaugh and Barrett are a little bit to the right of the majority, they have a more deferential-- they would sort of ensconce a more deferential version of the test. Justice Breyer doesn't quite pin it down. Thomas and Alito are definitely the right of the majority. They would cut things off at an earlier threshold, say doesn’t need this information. If Justice Gorsuch had voted what we might call according to type, like politically with those other four Justices, Breyer wouldn't even be the majority. Like we have a majority opinion by Kavanaugh, I guess, or Thomas laying out this even more deferential test. So, even though that's a dissent that he has, the fact that he's there actually shifts the balance the court in an important way.
Dan: Yeah. You think that opinion would have looked pretty different, because they would have just said, "You don't really need the information. That's the end of the story." And there wouldn't need to be more of a multifactor analysis of different things.
Will: Yeah. One or two things. He might have said that or Kavanaugh might have written it and kind of ensconced in law his more absolute version of the privilege. This opinion, I think we can see as applying the existing state secrets privilege without necessarily making a lot of doctrinal changes. [crosstalk]
Dan: Yeah. Just explain to me why Kavanaugh-- and Kavanaugh still says you make some initial inquiry into need. Even if you really, really need it, it could still be barred. But at least, you do look at that at the outset, right?
Will: Yes.
Dan: The person seeking the information, their need for that information. If they have no need or dubious need for it, you can easily kick things out. Even if it is within the privilege, even compelling necessity won't be able to overturn the privilege. And so, what you're saying is, that's different because the courts are going to be more willing to just say, "Sorry, even though you really need this, this is barred."
Will: Yeah. The point is you might have thought the test, you might have read it to say, if it's marginal state secret and the plaintiff really, really needs it, like the plaintiff was tortured and was being held unlawfully, and it's a pretty dumb state secret, you might have thought we would release it. And Justice Kavanaugh saying no. "Once it's the state secret at all, I don't care how much you need it. I don't care how--"
Dan: Yeah, that makes sense. Okay, so Justice Breyer is using your, let's put people on the left, right spectrum. Justice Breyer is to the right of Justice Kagan here, Justice Kagan is to the right of Justice Sotomayor. And then, Justice Gorsuch is the one who is most playing against type.
Will: Yeah.
Dan: All right. Anything else to say about this one?
Will: No.
Dan: Okay. That's good, because we got other stuff to talk about and fairly limited time, such that we're probably not going to get through everything. Could we talk about Wooden next? I don't know if this is the one you're most excited about?
Will: Definitely.
Dan: Okay. This is a fun one.
Will: This case has you written all over it, Dan.
Dan: Yeah. This one is substantive criminal law, which is a class that I teach to one else, we've got some statutory interpretation. We've got some talk about mens rea, the classic criminal law doctrines, has some really fun stuff going on here. We should try to set up the legal issue without getting too deep into the really complicated weeds. So, the legal issue involves the Armed Career Criminal Act, which is a statute that the Supreme Court has probably interpreted or dealt with constitutional challenges to 50 times, like a lot.
Will: Yeah, 50 seems a lot.
Dan: A lot, a lot. And there's a lot of moving pieces. We don't need to get into all that. Here, the question is about a specific provision that says there's a 15-year mandatory minimum for offenders who have at least three prior convictions for specified felonies, "committed on occasions" different from one another. Justice Gorsuch later is going to say, "We should call this the occasions clause." So, this is the occasions clause. What did our poor hapless criminal William Dale Wooden do? Well, he went to a storage facility, like one of those self-serve storage facilities where you get like a big little garage bay thing.
Will: Yeah. Apparently right next to his home. Ironic. [laughs] Maybe. I don't know much about robbing storage facilities, but it's probably not.
Dan: Yeah, it's not. Maybe you should go somewhere where the suspects are not going to be quite so close. [crosstalk] And they went in, broke into one of them, and then quite cleverly broke into successive units by going through the interior drywall, and so ultimately got stuff out of 10 different storage units.
Will: [chuckles] One at a time.
Dan: Yeah. Not on separate days, just during one run.
Will: Yeah.
Dan: And this was 10 crimes under state law. And this is just another thing to make clear is that this federal Armed Career Criminal Act looks to whether you've committed things under other jurisdictions law. A state law conviction can count as a predicate that can then make you eligible for greater punishment down the road, if you are charged into this. Federal provision that makes it a crime to possess a gun for being a felon, and then it has the sentencing enhancement.
Will: Right. So, here we are in 2022, looking back 25 years ago to this time he was convicted for 10 counts of burglary. 10 counts of burglary in one indictment. 10 counts for 10 storage units. Now suddenly, federal law cares about a question that state law didn't care about, which is like, "How should we think about these 10 counts that you're convicted of?" We think of them as 10 occasions of burglary that happened one room after another? Or, should we think of as one occasion where they went from room to room to room and stole 10 people's stuff, right?
Dan: Yes. We've got an opinion by Justice Kagan. Justice Kagan, the kind of courts say liberal textualist and writes a very textual opinion using some of the moves that she tends to use, a kind of appeal to common sense. What do these words mean? How would people use them? Appeal to what I've called Kagan analogies where she tries to come up with common sense analogies to, or just show how we might use this word, normally. Basically, the bottom line is like, "No, this is not 10 occasions. That's not how you would use the work." You'd say, on one occasion, Wooden committed 10 acts of extra burglary, not that he committed burglary on 10 different occasions, which makes sense, as far as it goes. I think the harder question is exactly how we figure out in future cases, what counts as a separate occasion because she doesn't want to give us like, "An occasion is something that happens within a 30-minute timeframe, or an occasion is something that happens within a half mile radius." We don't get anything like that.
Will: Yeah. You've got to admire the defense lawyers who set this one up in cert petitions. It's the perfect test case. It's technically 10 separate burglaries, but [laughs] literally, they don't even leave the building. They don't walk through a door to get from one burglary to the next. They just plow through the wall. But you can imagine, okay, suppose it's 10 houses or 10 apartments next to each other, and I go in each one--[crosstalk]
Dan: Or he drives across town, right?
Will: Yeah, exactly. 10 muggings as I drive around town on mugging spree, it gets harder. You don't have to deal with that if you don't want to.
Dan: Yeah. We are going to have to figure out how this might work in those other cases. She tells us, well, the inquiry that the interpreting occasion requires is multi factored to a range of circumstances relevant to identifying episodes of criminal activity. Timing of course matters. So, if they're really close in time, that's probably one occasion. But if there's substantial gaps or intervening events, less likely. You look at proximity. How far away did the two crimes occur to count as one occasion or multiple occasions? The character and relationship of the offenses may make a difference. It's perfectly clear guidance, but an appeal to common sense. Like, how would you use this word? Would someone say in ordinary language like, "Yeah, these two things they happen within about half an hour, same place, that's the same occasion." Or, where they say, "No, happened across town later in the day, two different occasions."
Will: Yeah. On the one hand, this is obviously unsatisfying. It doesn't give you a lot to work with for all the many, many versions of this that come up and the ACCA is the statute where this comes up a lot. On the other hand, maybe that's part of the design. You think about the context this is coming up, and there's now a federal judge who sentencing somebody for a gun crime and trying to look at their rap sheet and decide whether or not they have to give them this souped-up mandatory minimum. And one of the questions you now get to ask when you look at the rap sheet is, like, "Okay, there are a bunch of convictions here, but should I really see you as a repeat offender or should I group these convictions together as all of them all having happened more or less at once?" Maybe in that context, we don't mind as much if judges are-- or at least Judge Kagan doesn't mind as much if judges are kind of going to use a little bit of judgment, it's going to be influenced in part by their sense, like, "Look, you just had one really bad night," versus somebody who was like, "No, you're clearly an armed career criminal."
Dan: Yeah. What you just said about Judge Kagan said also brings to the surface kind of a thing that's not really an issue in the case, but comes up in a footnote in Justice Gorsuch's separate opinion. He's concurring and the judgment reaching the same outcome, but using different reasoning. But he notes there's also kind of a potential constitutional issue here, which is that normally judges are the ones making this determination. There's some very complicated [unintelligible 00:35:44] case law about when exactly a judge is allowed to find facts that kind of enhances your sentence, makes you eligible for a mandatory minimum. And when they don't, that wasn't presented in this case, there is a rule that the mere fact of a prior conviction is something that a judge can find, rather than submitting to a jury. This seems maybe a little bit different.
Will: Yeah. There were some amicus briefs that argued this was different, because the facts of the convictions are we all know what they are. But some of the understanding of how to think of them was a different occasion or not, you could imagine being more of a different question.
Dan: But that's not going to be an issue here. We're just going to be trying to figure out what counts and judges, presumably, unless the court addresses this constitutional question down on the road, are going to be figuring that out. I think that clear rules are nice, but sometimes language isn't clear, and sometimes we have to just use our common sense and say, yeah, this counts, yeah, it doesn't and that's part of the judicial task. I don't totally disagree with where Justice Kagan lands on this, but let's compare it to what Justice Gorsuch wants to do and then let's circle back to Justice Kavanaugh who, in some ways is maybe responding to Justice Gorsuch.
Because Justice Gorsuch wants to make a fairly interesting move here, which is he wants to rely on this thing called the "rule of lenity." You've heard of it, except it doesn't seem to do much. It's this rule that in cases of ambiguity, the tie should go to the criminal defendant. When there's a criminal statute, and we're not 100% sure which way it should go, tie should go to the criminal defendant. Let's err on the side of lenity. There's lots of potential justifications, FEAR notice to people, Congress, or the legislature generally is in a position to fix these things. The court has said this a bunch.
Will: I'm not sure Justice Gorsuch would agree with your characterization of the doctrine there, but go ahead.
Dan: Okay. Is that fair at least as a summary of where it is currently?
Will: Well, Justice Kavanaugh would say, sure.
Dan: Yeah. Basically, the court has said a bunch of times there is this doctrine, but then basically never applies it, because under current doctrine, this comes in as a tiebreaker at the last minute if you do all of your interpretive moves, and at the very end of the day, you get to exactly 50-50 equipoise, in terms of statutory interpretation. Then, the rule of lenity kicks in, breaks the tie. The court basically never gets there, because it always says, "Well, maybe you read the statute. At first, it seems a little ambiguous. But at the end of the day, we did our tools of statutory interpretation, we've resolved the ambiguity. And so, forget about the rule of lenity."
Will: Right. Justice Gorsuch would, true to form, link this to what he calls an old idea. The notion that penal laws should be construed strictly, I think, is the more accurate way-- that is an accurate way of describing how the rule used to be characterized, the rule of strict construction of penal statutes. And that characterization matters for a couple of reasons. One is instead of thinking of it as just like, well, you just do the normal interpretive thing and then you see if you get to a tie, you see if you get to an ambiguity. It's a rule that pervaded in the case from the beginning. Okay, this is a criminal case, I'm not approaching this in the same way I would approach the regulation of tree toads in wherever, like, there's somebody's life or liberty on the line, and that just pervades the whole case--[crosstalk]
Dan: It's an interpretive posture rather than a little thing that you do at the very end of the process.
Will: Right. And then for Justice Gorsuch as well, that also shapes the kinds of things that are legitimate to look to in resolving any ambiguities. So, one of the fights is about rule of legislative history, for instance. Justice Gorsuch would say-- this might be driven under the rule of lenity, it's a little bit debated. Justice Gorsuch would say if you have to go to the legislative history to know this is criminal, you can't do that. Because we do this fiction, it's a fiction, we do this fiction that people are supposed to know what the law is because in theory, you can go look it up. But nobody can-- I mean, I don't know. Maybe if you have a USSCAN subscription, but you can't look at the legislative history even in the same way you can look at the law. And we certainly don't want to hold on to that. So, if you get to the point where you're like, you looked at the law, you're like, "I don't know if this is wrong. Ah, but the committee report. The committee report criminalizes this." Justice Gorsuch would say, "You can't do any of that."
Dan: Should we set that up maybe a little bit by circling back to the majority and how that came up?
Will: [sighs]
Dan: Is it too deep in the weeds? You're sighing.
Will: [chuckles] It's the least interesting part of the opinion but it's not--
Dan: It's a little interesting from the Supreme Court procedure point of view. Basically, the short version is there was this case that came up to the Supreme Court a number of years back, about 30 years ago, and the earlier version of the Armed Career Criminal Act did not use this occasion language. Federal prosecutors basically were seeking enhancement for someone who committed six counts of robbery in one incident, and tries to get Supreme Court review. The SG in that case says, "Oh, yeah, that was wrong. Actually, the ACCA should not be interpreted to reach multiple felony convictions arising out of a single criminal episode." Basically, the opposite argument they're making here. Subsequently, ACCA is amended. There's some legislative history suggesting maybe that what Congress is trying to do is actually like agree with the Solicitor General and make it more restrictive, say, "Okay, it has to be different occasions."
Will: There is a document put in the record by Senator Robert Byrd, we don't know who else agree with it, that says, "The proposed amendment would clarify the Armed Career Criminal Act statute to reflect the Solicitor General's construction in petty." So, at least somebody in Congress had read the SG's brief and said, "We're going to do that."
Dan: Yeah. Are you allowed to look at that or not? Or, should you just be-- not even getting to that point. You're just like, "Look, is this language--" at the outset, let's just really strictly construe it, strict construction, it's at least arguable that occasions are different in time and place. And you don’t need to--[crosstalk]
Will: It happens here that legislature history argument favors a criminal defendant. So, that's why it ends up being a little beside the point. But I think Justice Gorsuch was thinking like, "What if that had come out the other way?" What if, instead, that random document introduced by Senator Robert Byrd had said, "By occasions, we mean, if you ever go from room to room knocking down drywall, that's 10 occasions."
Dan: Yeah.
Will: It's ridiculous to think that is going to somehow later put somebody in jail.
Dan: Yeah. That is arguably the problem with the court's current approach, which is you can take a statute and you read it, you're like, "Yeah, this is kind of ambiguous." But then, the court will say, "We've gone through all our 12 different tools and canons and legislative history and all this other stuff. And at the end of the day, we now think it's 51% in favor of the government, 49% in favor of the defendant. It's not a tie, no rule of lenity. Therefore, government wins." Whereas if you take the Justice Gorsuch posture, like if at the outset, this is ambiguous, you're going to really strongly err in favor of an interpretation that favors the criminal defendant. And Justice Sotomayor, by the way, basically agrees in a sense. We do have another one of these unlikely [unintelligible 00:43:13], as we just talked about.
Will: It's getting more and more likely by the minute, Dan.
Dan: Apparently, but the big, large center of the court, which is everybody else doesn't agree.
Will: Yeah. Justice Kavanaugh really doesn't agree.
Dan: Yeah. Justice Kavanaugh has an interesting point of view, and he has clearly thought a lot about substantive criminal law. He says, "Look, let's stick with the current approach. Rule of lenity comes in at the end. It's not this consideration that comes in on the front end of the process, and it's totally fine. And it's right that it really doesn't end up doing a lot of work, because courts are supposed to use all the tools. If it comes in last, it basically comes in never." Quoting criminal law scholar, Dan Kahan, and just says, "Let's stick with that. It's really unclear even what counts as ambiguous. And so, that's going to create all these problems of application. So, it's just going to open this whole can of worms if we go with the Justice Gorsuch approach." But he suggests there's a different way to get at some of those concerns. Some of those concerns that are underlying Justice Gorsuch's opinion about fair warning, overcriminalization, this constellation of concerns you might have about maybe not interpreting federal criminal law too generously.
Will: Mens rea.
Dan: Mens rea, okay, the guilty mind. Mens rea is the concept that for every criminal statute, we need to figure out what kind of state of mind is required to commit it and in what state of mind is required to the kind of different elements of the crime. Elements being the kind of discrete, factual building blocks that are required to be proven or to prove that someone is guilty of a crime. Mens rea is really interesting, because it's one of these things that has very little textual grounding. Sometimes, federal criminal statutes generally will give us explicit mens rea terminology. They say, "With the intent to do X, with knowledge that Y," but often they don't. Often, they just describe forbidden conduct. And then courts do this, and they have for centuries, they do this a textual almost like policy-based inquiry to say, "We think this statute must require proof of this level of mens rea.
They do this across the ideological spectrum. There's an opinion by Justice Thomas, in a case called Staples, which is about a federal criminal law that imposes very harsh penalties for possessing an unregistered machine gun. It actually doesn't say anything about mens rea. But then Justice Thomas says, "Well, we have these background principles of mens rea. And if we interpret the statute as not requiring proof that you knew your gun was capable of automatic fire, this would criminalize a lot of innocent conduct, a lot of people own guns innocently, that's totally normal thing in America. We're going to interpret the statute despite any clear textual command to do so as requiring proof that someone knew their gun was capable of automatic fire, before they can be convicted under this crime."
Will: Yeah.
Dan: Then, there's lots of other examples where courts are engaging in this very atextual analysis in determining the mens rea elements of statutes. As far as Justice Kavanaugh is concerned, that's the tool that we should use to address the concerns about punishing people unfairly. We could have heightened mens rea requirements, people have to know certain facts. He also suggests that sometimes courts should be willing to recognize a mistake of law defense, situations where you don't know what you're doing is illegal. This is much more controversial. There's a general proposition in American criminal law that ignorance of the law is no excuse. The court has sometimes been willing to create exceptions to that rule for certain kinds of crimes that are not known.
Will: Justice Kavanaugh was willing to make that doctrine more general. There, he was not just saying, "Don't worry, we've got this covered." He was saying, "I'm open to more mistake in law defenses," right?
Dan: Yeah. It's interesting, because he's saying, "Well, let's not change the way we interpret statutes because of this argument about lenity. But maybe let's change the way we interpret statutes in this other way."
Will: Yeah. It's interesting. I'm kind of a both ends guy on this debate, I think. You want to cleanly separate what you're doing. Justice Kavanaugh says, "Well, we're interpreting the statute. I don't want to overexaggerate the ambiguity, make ambiguity thresholds, easier to satisfy. Get the statute and try to do it as cleanly as possible. And then if we've got a problem, rather than pouring it all into our attempt to twist the statute for what's it's worth, let's just have a supplemental common law doctrine that presumes mens rea riding alongside the statute." It's not like he's a textualist in the sense that you can't have anything that's not in the textual statute. It's a textual sense that he wants to keep the textual analysis clean and then whatever other stuff you're doing, do that on the side.
Dan: Yeah. To some degree, I understand that impulse, because once you start saying, "Okay, do this whenever a statute is ambiguous." Statutory language is inevitably ambiguous in some way. Statutes, they cannot anticipate every possible scenario. They have to be written in so much general language, criminal statutes, they're not going to be 100 pages long. There's always going to be some work of interpretation to figure out did they mean this? Did they mean that? To the extent, we go with an extreme version of the rule of lenity, basically nothing, it's very hard to say anything is covered, because you can always come up with some argument. But I do think that there is something odd about the current doctrine where we say, "Oh, we have this important rule. And by the way, we never ever, ever, ever follow it." So, maybe the happy medium is somewhere in between, where sometimes we should be more willing to say, "This is at least a pretty close question. And without more a clear statement by Congress or the legislature, depending on what court you're in, maybe we should-- it's close enough that we should err in favor of the criminal defendant." That doesn't strike me as crazy.
Will: Maybe not. One of the things Justice Kavanaugh cites, which is a source worth looking at if people haven't looked it up before, is an article he wrote, technically a book review in the Harvard Law Review called Fixing Statutory Interpretation back when he was a judge at the DC Circuit. It's a review of Judge Katzmann's book on statutory interpretation. There, he has a more full call for the abandonment of all these ambiguity dependent canons. And one of his specific arguments there is just empirically, given his experience as a judge, the ambiguity thresholds is too easy to manipulate. Maybe a statute actually-- it's not that everything is ambiguous, but instead of like, "Look, if I told you you can make the case come out the way you want, if you say the statutes ambiguous, you can make yourself say it." And he actually even has a remarkable unsourced report that he's talked to a bunch of his colleagues at conference about what is the ambiguity threshold? And they don't agree. Some of them think that one-- if it's a 90/10 case, one interpretation is 90% more likely, it's still ambiguous. Some of them think the thresholds are like 60/40 or 55/45, you just say, descriptively, I can tell you that, why don’t we sit down and try to talk about this, we don't even agree what we're doing.
Dan: Yeah. It's really interesting, though, because you wonder, is there actually going to be more disagreement about ambiguity versus disagreement about statutory meaning? Because there's often a lot of disagreement about statutory meaning too, right?
Will: Yeah.
Dan: Judges get together, and they interpret the statute, and it's fine for it.
Will: Maybe it multiplies. Maybe if you have one chaos factor and you square it, you get a lot more.
Dan: Yeah. But not obviously, maybe it's just the same level of uncertainty and you're just shifting where it happens. And so, you end up with-- the fuzzy line is further along in favor of defendants, and it's still just as fuzzy. I don't know.
Will: I also have an article written with my, now colleague, Ryan Doerfler. The (Not So) Plain Meaning Rule that takes us a related line Justice Kavanaugh did about ambiguity dependent. As we say, it's not unjustifiable, but it's presumptively weird. If you think something is important enough that you can use it in cases of ambiguity and then you never ever use it anywhere else in the case, that is a way you could decide to stage legal proceedings. But if it's relevant, that's a criminal case. And it's relevant enough, then you should use that as a tiebreaker. Maybe sometimes, that's a fact you want to know at the start of the case. It's maybe just more holistic, and of course, it is artificial. Judges know these are criminal cases, and they know there's a rule of lenity even before they get to the ambiguity.
Dan: By the way, Justice Gorsuch would not necessarily restrict it to criminal cases. This is another interesting thing that pops up in his opinion. He says, "Lenity has long applied outside of what we might call the criminal law." He says in a footnote, "It applies to all penal laws, laws inflicting any form of punishment, including ones we now consider civil. It's just one of a number of judicial doctrines that seek to protect fair notice and the separation of powers." It would not be surprising to me if Justice Gorsuch really sees a much wider application for principles like this that is going to inform his approach to maybe administrative law, things like that where he has a much particular view of what judge's role should be relative to the other branches, what kind of interests are at stake and so on.
Will: There's one thing I love about this, and one thing I really worry about that. I just love that recognition that we've been talking just now about how criminal law has these stakes where somebody is going to go to jail over it. But in a way, as Robert Cover used to say, "All legal interpretation takes place in a field of pain and death." At the end of the day, if you don't obey the administrative order that issues from the EPA, you're going to have contempt of court, you'll go to jail too or you can lose your job, or all sorts of things that are really important. So, I appreciate the recognition that there are stakes in all these cases that matter.
The thing that makes me nervous is the place where current law does this the most vigorously is the doctrine of qualified immunity, which protects government officials against liability for a huge range of supposedly ambiguous constitutional violations. One of the three justifications that the Justices put forth is doctrine. The one that's gotten the least attention until now is a rule of lenity type argument, that it's unfair to hold officers personally liable if they couldn't have known that this was going to be the five-factor test. Now, you could agree with Justice Gorsuch's principle and still say, "Qualified immunity has gone way too far. We apply to lots of cases of legislation that doesn't make sense." But that makes me nervous that Justice Gorsuch is going to come in later as qualified immunity as his new best friend, and I hope--[crosstalk]
Dan: Yeah, that’s really interesting. Obviously, it's a different kind of doctrine, because it's not about interpreting criminal statutes, it's about interpreting the background legal doctrines that kind of inform whether law is clearly established. But yeah, if that is your view that anytime something imposes something that looks like punishment, whether it's civil or criminal--
Will: Fair notice is the separation of power are these free-floating concerns that--
Dan: Yeah.
Will: Nathan Chapman, he's a professor at Athens, Georgia, cited in Justice Gorsuch's article he co-wrote Michael McConnell is cited in, I think Justice Gorsuch's opinion here, has a new forthcoming article making this fair notice defensive qualified immunity or some quality immunity. A lot of the current cases would not necessarily measure up that way, but some of them would. I'll predict here now that Justice Gorsuch and Nathan Chapman are going to find each other the next few years.
Dan: Bad news for you because you're a prominent critic of qualified immunity. So, maybe you just lost a vote.
Will: Well, maybe he's not going to [unintelligible [00:55:27] fair justices anymore.
Dan: Okay. The six-way tie will be broken. I'm actually running out of time. So, I think we might do an episode next week, Will, if you're able to, that would be touching on some of the other opinions. What do you think?
Will: Would that be the same occasion or another occasion?
Dan: Well, let me apply a multifactor test and get back to you. The court did some other stuff that we will not talk about at this moment, but there's an interesting case involving the Boston Marathon bomber, Dzhokhar Tsarnaev, and his death sentence. There's another case that is at the intersection of really nerdy federal courts doctrine and abortion, and some other stuff that happened on orders--
Will: Shadow docket.
Dan: Yeah. Okay, fine. Shadow docket related to partisan gerrymandering and elections. We'll circle back to that in a few days. But for now, this is what we got.
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Dan: Thanks very much for listening. Please rate and review us on wherever you listen to podcasts, like the Apple Podcast Store. Send a feedback that we sometimes managed to respond to, often don't, at pod@dividedargument.com. Check out our website, dividedargument.com, where we have transcripts of all the episodes within a few days after they're released. If there's something you remember we said and you want to go check it, that's a helpful resource. And then, merchandise is available at store.dividedargument.com.
Will: Thanks to the Constitutional Law Institute for sponsoring our endeavors. Thanks to the Justices for writing some opinions that are actually interesting to talk about.
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