Continuing a Discussion of the Supreme Court's Term: Statutes (Mostly)

The title of this post ends with a parenthesis because ... this first case of the five we will discuss today is not really a matter of statutory interpretation but an exercise of the Court's equitable powers within its area of original jurisdiction. The other four will involve federal statutes: scout's honor.

We will spend more than half of what follows on the always pressing issues of criminal sentencing. But let's work up to that, and start out with a aquifier in Dixie. 

An Interstate Riparian Dispute 

Back in November, SCOTUS dismissed a complaint from Mississippi in its dispute with Tennessee over a groundwater aquifer.   

The intriguing thing in this case is that Mississippi's claim was so outrageous one wonders what has happened to the state AG's office, or what happened within it, that could have led to the making of such a futile argument. 

Defying a very broad consensus, Mississippi argued that in allowing the Memphis Light, Gas, and Water Division to pump a lot of water from the aquifer, causing water that would otherwise have stayed in Mississippi to flow across the border, Tennessee had invaded Mississippi's sovereign territory. Worse, these are the only two states in the Union with that distinctive letter-twinning-three-times pattern in the spelling of their name. It is sad to see them at odds. 

Anyway: Miss. did not want the equitable apportionment. It wanted monetary damages. It wanted the court to treat the issue as an interstate tort of conversion, and it sought $600 million in damages.  

It didn't get that. The court, unanimously, and quite predictably, told it, "Sue for equitable apportionment if you want, but THIS case is done." 

The only thing that makes the decision worth noting here is the effrontry of the effort. Let's move on.  

Labor Law: Limits to Mandatory Arbitration  

This decision, Morgan v. Sundance, came down in May.  This was also a unanimous decision, again suggesting serious litigant overreach. And here we come to the statutes. 

The statute at issue is the Federal Arbitration Act, which requires that courts put arbitration agreements (between employees and employers) on an "equal footing" with other kinds of contracts. Employees often want to avoid the effect of arbitration contracts, which they come to regard --often quite rightly -- as forcing disputes into a game in which the employers get to play with a heavily stacked deck.

In this instance the employee was Robyn Morgan, and the employer was a Taco Bell franchise owned by Sundance.   

Sundance had begun to litigate -- not arbitrate -- this case against Morgan. But after learning of another SCOTUS decision, the LAMPS PLUS case in 2019, Sundance decided its odds were better in arbitration, and it wanted to switch to that. [BTW, I included the LAMPS PLUS decision in my session-end wrap-up that year, so I won't go over that ground again now.]

In other contexts, litigants cannot unilaterally switch forums in this way. Thus, the equal footing rule means that they can't do so in this context either. Though there is in some circumstances a pro-arbitration bias in the law, which SCOTUS continues to accept, it is trumped by the equal footing principle. This one stays in the courts. 

Sentencing Disparities and Some Odd Bedfellows 

On June 27 SCOTUS issues its Concepcion decision. This was a 5-4 ruling that is remarkable for the odd bedfellows that that split entailed. But it should be noted that decisions involving criminal law procedures, standards, and sentences often produce ideologically odd combinations.  

We need to cite two federal statutes here -- one from Obama's era in the White House, the other from Trump's. 

In 2010, Obama signed the Fair Sentencing Act to correct a wide and manifestly unfair disparity  between the sentences to which possession of crack cocaine on the one hand and powder cocaine on the other sentencing. Section 2 of that Act increased the amount of crack cocaine needed to trigger a 5-to-40- year sentencing range from 5 grams to 28 grams.

It did NOT apply retroactively, so it did not do Carlos Concepcion and many others in his situation any good. Carlos had been found guilty in 2009 of  distributing five or more grams of crack cocaine, and he was sentenced in 2009 to 19 years (228 months) in prison. When Concepcion was sentenced, he qualified for sentencing as a “career offender.” The career offender provision and other enhancements hurt him under the Sentencing Guidelines.

In 2018, Congress passed and President Trump signed the First Step Act, authorizing district courts to consider sections 2 and 3 of the Fair Sentencing Act when faced with petitions for reduced sentences. 

This may seem a straightforward application of that Act in Concepcion's favor, but prosecutorial sophistry managed to make it seem complicated.  At any rate, on remand, the Fair Sentencing Act and other changes since Concepcion was last out on the streets MAY have a retroactive effect. Justice Sotomayor delivered the opinion. Voting with her? Thomas, Breyer, Kagan, and Gorsuch. 

So: one Bush family nominee, one Clinton nominee, two Obama nominees (Kagan and of course Sotomayor herself) and one of the Trump nominees united to achieve this modest victory for human freedom and sentencing equity. This might give us some hope going forward. 

We have two further law-and-order cases to consider. 

What is a crime of violence? 

In United States v. Taylor, argued in December, decided on June 21, the Supreme Court upheld the 4th circuit, which had narrowly interpreted the notion of a crime of violence to exclude a Hobbs Act robbery.

That's a lot of jargon and requires unpacking. A Hobbs Act robbery, under 18 U.S.C. § 1951, is a robbery is robbery intended to obstruct, delay, or hinder commerce.  The idea of a specific type of robbery defined in this way was originally intended to combat racketeering in a labor union context, though it has been more broadly used. 

In the case at issue, Taylor was breaking into the homes of and robbing illicit marijuana dealers. This was taken to satisfy the "commerce" element at the trial level and that was not controverted on appeal. 

The particular statute under which Taylor was convicted and sentenced criminalizes the use of a firearm in connection with a "crime of violence." As Justice Kavanaugh said during oral argument, "Congress obviously did this and imposed this because there's a huge problem with violent crime committed with firearms and [it] thought that the sentences were not sufficient to protect the public." 

But the same oral argument showed that the Justices were struggling with the big abstract statements of both laws and with how they intersect. 

In the end, Taylor benefits from their struggling. By a 7-2 vote, the Court held that a crime is a crime of violence only of some element of its definition requires proof of the use or the threat of force, that this definition doesn't apply to Hobbs Act robberies, and that accordingly there has been no showing that Taylor is guilty of an offense of violence with a firearm. 

The two dissenters were Thomas and Alito. This means that the 7 votes included all three Justices nominated by Trump.

This has on the whole been a good session for liberty on the matter of the construction of statutes. Our final example will also make that point. 

Death Row Inmates and Section 1983

Nance v. Ward was decided just two days after Taylor. There is an underlying constitutional question: as us usual with death penalty cases, the underlying question is the one posed by the 8th amendment: when is a punishment "cruel and unusual." In this instance, the arguments were about the statute under which prisoner, Michael Nance, sought to raise that constitutional issue. 

This was not habeas litigation. A habeas case claims that a prisoner is unlawfully confined, hence the Latin phrase habeas corpus, which is directed at the warden and means literally "you have the body." The warden, or in this case the commissioner of the Georgia Department of Corrections, Ward, has Nance's body and has to come to court to explain why he should be allowed to keep it!

This is not that sort of case and would have been doomed had it been cast in that form. This was an argument that, due to the prisoner's medical condition, he would suffer severe pain from lethal injection. He proposed firing squad as an alternative.   

The Supreme Court decision, June 23, doesn't get to the issue of the cruelty of lethal injection in Nance's situation. It does decide, though, that what are called "section 1983" lawsuits remain available. Comm'r Ward had sought to close sect. 1983 as an avenue for challenge. 

This was a 5-4 decision, in which the three blue Justices were joined by two of the red ones: Roberts and Kavanaugh.  That left Barrett, Gorsuch, Alito and Thomas in dissent. 

The majority opinion gestures toward the issue of timeliness that underlies much death row litigation. Is Nance stalling just to stall, because life even in his condition of confinement is better than the non-existence he presumably fears? 

Kagan, for the majority, says: “In recognizing that § 1983 is a good vehicle for a claim like Nance’s, we do not for a moment countenance ‘last-minute’ claims relied on to forestall executions.”

None of the five cases we have considered today is a 6-3 split on blue versus red grounds. And that itself is good news. Not just for death row inmates but certainly for them! 

Tomorrow, we come to a range of constitutional claims addressed by the Court this session.