Supreme Court Update: Gloucester County School Board v. G.G. (16-273), Peña-Rodriguez v. Colorado (15-606), and Beckles v. United States (15-8544)
Greetings, Court Fans!
The Court kicked off the week with a flurry of activity in criminal cases, issuing a landmark Sixth Amendment ruling, another decision closing the door on vagueness challenges to the Sentencing Guidelines, a per curiam decision on the standard for disqualification of judges in criminal trials, and several statements regarding cert denials in criminal cases.
We'll cover all of that below, but first—for those of you whose eyes glaze over when we prattle on about criminal law and procedure—a few words on the biggest headline of the week from the Court, its decision to vacate and remand without opinion in Gloucester County School Board v. G.G. (No. 16-273), the case of a transgender teen who identifies as male and seeks to use the boys' bathroom at his Virginia high school, in contravention of a school board rule requiring students to use bathrooms and locker rooms that match their sex at birth. As we noted when the Court granted cert in October, the media has characterized Gloucester County as concerning the rights of transgender public school students to use the bathroom of their choice. Though it obviously concerns that headline-grabbing issue, the case really turned on principles of agency deference.
GG alleged that the school's refusal to let him use the boys' bathroom violated his rights under Title IX, which prohibits discrimination on the "basis of sex," and Department of Education regulations promulgated pursuant to Title IX. In 2015, the DOE's Office of Civil Rights issued a "Dear Colleague Letter" in connection with GG's case advising that sex discrimination under Title IX includes discrimination on the basis of gender identity and that schools providing separate bathrooms for each sex generally must allow students to use whichever bathroom is consistent with their gender identities. The Fourth Circuit afforded the Dear Colleague Letter Auer deference—meaning it deferred to the agency's interpretation of its own regulations—and the Court granted cert in October to determine whether deference was appropriate where, as here, the agency interpretation was voiced in a letter issued as part of the very dispute before the court. But the Trump administration swept the legs out from under the case when the DOE rescinded the 2015 Dear Colleague Letter three weeks ago. Although the agency deference question was mooted, both parties urged the Court to keep the case on the docket, noting that the Court had also agreed to consider whether the school board's bathroom policy violates Title IX and the DOE's implementing regulations irrespective of the 2015 letter. But the Court evidently concluded that it was premature to take on that question inasmuch as the Fourth Circuit decision turned exclusively on the Auer issue. The Court therefore vacated the Fourth Circuit's decision and remanded the case to that court for further consideration. The case may well return to the Court next term.
Gloucester County may have taken up more space in the nation's newspapers this week, but it is likely that Peña-Rodriguez v. Colorado (No. 15-606) will take up more space in the nation's con law and crim pro casebooks. In a groundbreaking decision, the Court held that the Sixth Amendment requires that state and federal rules prohibiting jurors from testifying about their deliberations must be set aside where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant.
After Peña-Rodriguez was convicted of sex crimes involving two teenaged girls, two jurors approached his lawyers and stated that, during deliberations, another juror (referred to as H.C.) had expressed anti-Hispanic bias toward Peña-Rodriguez and his alibi witness. With the court's permission, Peña-Rodriguez's counsel secured sworn affidavits from the two jurors attesting that H.C. had told other jurors that he "believed the defendant was guilty because, in [H.C.'s] experience as a law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women" and that "nine times out of ten Mexican men were guilty of being aggressive toward women and young girls." The trial court acknowledged H.C.'s apparent bias, but denied Peña-Rodriguez's motion for a new trial under Colorado Rule of Evidence 606(b), which, like Federal Rule of Evidence 606(b), prohibits a juror from testifying as to any statement made during deliberations in a proceeding inquiring into the validity of the verdict. The Colorado Supreme Court affirmed and the U.S. Supremes granted cert to decide whether there is a constitutional exception to so-called "no impeachment" rules for instances of racial bias.
In a landmark 5-3 decision, the Court held that the Sixth Amendment does require a racial-bias exception to no-impeachment rules. Writing for the Court, Justice Kennedy began by tracing the history of the common-law no-impeachment rule, through its various iterations in the state and federal jurisdictions in the United States, and ultimately to its 1975 codification as Rule 606(b) of the Federal Rules of Evidence. As Justice Kennedy explained, the purpose of the no-impeachment rule is to promote full and vigorous discussion by jurors, safe in the knowledge that they will not be summoned to recount their deliberations after they are discharged, and to promote the finality of jury verdicts. Some version of the no-impeachment rule is followed in every state and the District of Columbia. However, as Justice Kennedy pointed out, at least 16 jurisdictions, 11 of which follow the more stringent "federal rule," have recognized an exception to the no-impeachment bar to permit juror testimony that racial bias played a part in deliberations.
Having laid out the history behind the rule, the majority concluded that the Sixth Amendment requires all jurisdictions to recognize an exception in cases involving clear evidence of racial bias. Though he acknowledged that the Court had twice before rejected constitutional exceptions to the no-impeachment rule (including just two terms ago in Warger v. Shauers (2014)), Justice Kennedy stressed that those decisions had left open the possibility that an exception would be found in cases of "juror bias so extreme that, almost by definition, the jury trial right has been abridged." As the Court's Fourteenth Amendment jurisprudence shows, discrimination on the basis of race, "odious in all aspects, is especially pernicious in the administration of justice, damaging both the fact and the perception of the jury's role as a vital check against the wrongful exercise of power by the State." The same concern is relevant to the Sixth Amendment right to trial by an impartial jury. "A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right."
The Court therefore held that "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee." Having opened the door, the Court proceeded to raise the threshold for seeking a new trial on grounds of racial bias in deliberations. "For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict." The Court committed that threshold determination to the discretion of district courts, to be guided by the experience of courts in states that already recognize a racial bias exception to the no-impeachment rule. It did not, however, offer any guidance on the procedures a trial court should follow when confronted with a new-trial motion on these grounds, or "the appropriate standard for determining when evidence of racial bias is sufficient to require that the verdict be set aside." And, although the concern dominated oral argument, Justice Kennedy's opinion did not draw a clear line distinguishing racial bias in deliberations from biases based on gender, religion, or other characteristics.
The majority's failure to articulate "principled grounds for preventing the expansion of today's holding" animated Justice Alito's principal dissent, joined by the Chief and Justice Thomas. In Alito's view, the no-impeachment rule is about protecting the confidentiality of juror deliberations and is therefore little different from the marital, attorney–client, or priest–penitent privileges. And there is no principled reason why a defendant should be able to pierce the veil of confidentiality if he has evidence that a juror disclosed his racial bias in deliberations, but not if he disclosed that bias to his spouse, attorney, or priest. And, for that matter, there is no principled basis for permitting a defendant whose conviction was tainted by racial bias in deliberations to obtain a new trial, but not a defendant whose conviction was tainted by religious bias or even bias based on sports rivalries. The Sixth Amendment, after all, protects the right to an "impartial jury," not the right to be free from racial discrimination. "If the Sixth Amendment requires the admission of juror testimony about statements or conduct during deliberations that show one type of juror partiality, then statements or conduct showing any type of partiality should be treated the same way." Ultimately, Justice Alito viewed the no-impeachment rule—which is codified in one way or another in the rules of every state and federal jurisdiction in the country—as a quintessentially legislative judgment that the confidentiality of jury deliberations is sacrosanct. Alito accused the majority of ignoring policy concerns implicated by no-impeachment rules. "But even if it had carefully grappled with those issues, it still would have no basis for exalting its own judgment over that of the many expert policymakers who have endorsed broad no-impeachment rules." Justice Thomas added a solo dissent arguing that nothing in the Sixth Amendment's text or history requires a racial-bias exception to no-impeachment rules, which predate the ratification of the Bill of Rights.
So Gloucester County grabbed the headlines, and Peña-Rodriguez will have a lasting imprint on Sixth Amendment law, but it's our next decision that is likely to have the most day-to-day impact in the courts. In Beckles v. United States (No. 15-8544), the Court slammed the door on vagueness challenges to the U.S. Sentencing Guidelines.
The case concerns Travis Beckles, who in 2007 was convicted of being a felon in possession. Because the firearm he possessed was a sawed-off shotgun, he was tagged with the "career offender" sentencing enhancement. Under the Guidelines then in effect, a "career offender" was an adult charged with either a controlled-substance violation or a "crime of violence" and who had two prior felony convictions for controlled-substance violations or crimes of violence. There was no dispute that Beckles's two prior convictions qualified, but he argued that his current charge—possessing a sawed-off shotgun—was not a "crime of violence" under the Guidelines. The Government contended that Beckles's offense qualified under the definition's "residual clause," which applies to any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Though Beckles argued that simply possessing a sawed-off shotgun does not present a serious potential risk of injury to anyone, his argument was not helped by the fact that the commentary to the career-offender guideline explicitly provided that possession of a sawed-off shotgun is a "crime of violence."
In 2015, however, Beckles appeared to catch a lucky break when the Court dealt a death blow to the identically worded residual clause in the Armed Career Criminal Act (ACCA). In Johnson v. United States, the Court found that the residual clause was unconstitutionally vague, and thus, that using it to increase a sentence would violate the Due Process Clause. So when the Court granted cert in Beckles, it seemed likely that it would take the same tack with the residual clause in the Sentencing Guidelines. Indeed, the Government conceded that the Guidelines were subject to vagueness challenges, forcing the Court to appoint an amicus to argue in the alternative.
The amicus was obviously persuasive, for the Court ruled that the Guidelines are immune from vagueness challenges. Writing for the Court (and joined in full by the Chief, Kennedy, Breyer, and Alito) Justice Thomas explained that the Sentencing Guidelines by their nature are not susceptible to vagueness challenges under the Due Process Clause. Unlike the ACCA, which "fixes" the permissible range of sentences, the Guidelines "merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range." As such, the Guidelines don't touch the concerns underlying the vagueness doctrine: providing notice and preventing arbitrary enforcement. There is no such thing as perfect notice when a judge, by definition, has discretion; "the only notice required is the applicable statutory range, which establishes the permissible bounds of the court's sentencing discretion." And the advisory nature of the Guidelines means they do not, by definition, regulate the public and therefore present a danger of arbitrary enforcement. Ultimately, in Justice Thomas's view, if complete sentencing discretion—that is, the pre-Guidelines regime—is not unconstitutionally vague, then "guided discretion" can't be, either. But the Court stopped short of immunizing the Guidelines from constitutional scrutiny entirely, citing possible ex post facto challenges.
Though the judgment affirming Beckles's sentence was 7-0 (with Kagan recused), it provoked three separate concurrences. Justice Kennedy joined the opinion in full, but (somewhat inconsistently) suggested that the Due Process Clause might permit a vagueness challenge to a sentencing provision that leads to a pattern of sentencing that is so arbitrary that it implicates constitutional concerns. Justice Ginsburg more forcefully rejected the majority's reasoning, finding that it was completely unnecessary to resolving the appeal. In a two-paragraph concurrence in the judgment, she explained that "[t]his case has a simple solution": Beckles was convicted for possession of a sawed-off shotgun, explicitly defined in the "authoritative" commentary as a crime of violence. Because his own conduct was "clearly proscribed," he has no as-applied challenge and also no standing to complain of the vagueness of the career-offender guideline as applied to the conduct of others. For her part, Justice Sotomayor agreed that the Court's ruling on vagueness was unnecessary, but wrote separately to criticize the substance of Justice Thomas's opinion. In her view, the Guidelines are not just the starting point for sentencing, but (as a practical matter) the end point; after all, she points out, district courts impose a sentence within the Guidelines range at least 80% of the time. Therefore, making light of the Guidelines as simply "advisory" ignores the fact that "[y]ears of Beckles' life … turned solely on whether the career-offender Guideline applied." In this sense, Sotomayor argued that the Guidelines are just "lawlike enough" to be subject to due process concerns. Ultimately, for Sotomayor, unlike Thomas, a little bit of guidance is a dangerous thing: "It is not reliance on discretion that makes a sentencing regime vague; it is reliance on an impenetrable rule as a baseline for the exercise of that discretion."
The Court continued its exploration of the various phases of criminal procedure in Rippo v. Baker (No. 6316), a per curiam decision reviving the due process claims of a Nevada death row inmate who alleged that his state trial judge was biased. During his first-degree murder trial, Michael Damon Rippo learned that the presiding judge was the target of a federal bribery probe and suspected that the District Attorney's office was playing a role in that investigation. He moved for the judge's disqualification under the Due Process Clause, but the judge declined to recuse. The Nevada Supreme Court rejected Beckles state habeas petition, reasoning that Rippo was not entitled to discovery or an evidentiary hearing because his allegations did not support the assertion that the trial judge was actually biased in his particular case. The Supreme Court vacated that decision, holding that the Nevada court applied the wrong legal standard when it required evidence of actual bias. Instead, recusal is required when, objectively speaking, the probability of actual basis on the part of the judge is too high to be constitutionally tolerable.
The Court did not grant cert in any new cases this week, but the denials occasioned sixteen pages of "statements" from Justices Thomas and Sotomayor. Justice Thomas issued a statement regarding the denial of cert in Leonard v. Texas (16-122), a case challenging states' ability to seize property pursuant to civil forfeiture statutes based on a showing that it is "more likely than not" that the money came from illicit sources. Though Justice Thomas agreed with the petitioner that the Due Process Clause may require a higher standard, he agreed with the Court that this case was not an appropriate vehicle for considering the question because the petitioner had raised her due process argument for the first time in her cert petition.
Thomas also dissented from the denial of cert in Baston v. United States (16-5454), a challenge to the scope of Congress's power under the Foreign Commerce Clause. Baston, a citizen of Jamaica, was convicted of international sex trafficking and ordered to pay restitution to his victims. The question in the case was whether the Foreign Commerce Clause permitted an award of restitution based on Baston's extraterritorial conduct. While Justice Thomas acknowledged that the facts of the case "are not sympathetic," he would have granted cert to consider the proper scope of Congress's Foreign Commerce Clause power, which he maintained is distinct from its domestic Commerce Clause power.
Finally, Justice Sotomayor added to the length of Monday's order list (and this Update) with a statement concurring in the denial of cert in Perez v. Florida (16-6250), in which a defendant challenged his conviction under Florida law for threatening to "discharge any destructive device" based on a drunken joke concerning "Molly cocktail[s]" in a liquor store. Perez challenged his conviction on the ground that he was convicted without adequate proof of mens rea. But Justice Sotomayor perceived cert-worthy First Amendment issues, namely an opportunity to decide precisely what level of intent suffices under the First Amendment to make speech criminal. But because Perez had not raised the First Amendment concern below, she concurred in the denial of cert.
That'll do it for this week. If you're still with us, chances are you spend more time with the Sentencing Guidelines than the Rules of Civil Procedure. Thanks for sticking with us, and stay tuned for our next Update, most likely later this month.