Supreme Court Update: Lockhart v. United States (14-8358), Gobeille v. Liberty Mutual Insurance Co. (14-181)
Greetings, Court Fans!
Who could have imagined a month ago that our summary of Justice Scalia's dissent in Montgomery v. Alabama (14-280) would be our last opportunity to analyze an opinion from the Justice who, alongside Jackson and Holmes, will forever be remembered as one of the Court's great writers? (Perhaps more than would have imagined Justice Thomas peppering an attorney with over a dozen questions, as he did this past Monday; but still, very few.) Justice Scalia's untimely passing has been lamented and memorialized by folks far more eloquent than us, and there's not much left for us to say, except for this: We read virtually every word the Justices of the Supreme Court write — from majority opinions and dissents to chambers opinions and dissents from denials of certiorari. Nobody writes like Scalia. Not every Supreme Court decision is interesting (see, e.g., Gobeille v Liberty Mutual Insurance Co. (14-181), infra), but virtually every Scalia opinion is. As Charles Fried once observed, Scalia's natural talent for writing was of "the kind which distinguishes a Mozart from a Salieri." That's something we will sorely miss around here.
Indeed, our first case this week, Lockhart v. United States (14-8358), verily screamed out for the Scalia treatment—so much so that the majority and dissenting opinions both cited his treatise, Reading Law, to support their interpretations of an ambiguous criminal statute. The statute, 18 U.S.C. § 2252(a)(4), subjects defendants convicted of possessing child pornography to a 10-year mandatory minimum sentence if they have "a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." Avondale Lockhart had a prior conviction for sexual abuse of his 55-year-old girlfriend when he was charged with possession of child pornography. So, whether he faced the mandatory minimum depended upon whether the modifier "involving a minor or ward" applies to all three of the offenses mentioned (including "sexual abuse"), or only to the last one, "sexual conduct."
Writing for a majority of six, Justice Sotomayor employed the "rule of the last antecedent" to conclude that only the last offense had to "involve[e] a minor or ward" in order to qualify. Citing Scalia's treatise, among other sources, Sotomayor noted that the rule of the last antecedent provides that a limiting clause or phrase should ordinarily be read to modify only the noun or phrase immediately preceding it—here, "abusive sexual conduct." To illustrate this principle, "Sonia from the Bronx" invoked her hometown ball club: "[I]magine you are the general manager of the Yankees and you are rounding out your 2016 roster. You tell your scouts to find a defensive catcher, a quick-footed shortstop, or a pitcher from last year's World Champion Kansas City Royals. It would be natural for your scouts to confine their search for a pitcher to last year's championship team, but to look more broadly for catchers and shortstops."
Although Sotomayor acknowledged that the rule of the last antecedent is not absolute, she argued that § 2252's context "fortifies the meaning that principle commands." In particular, she pointed to the fact that § 2252's reference to state laws "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward" seems to track the categories of federal offenses that also trigger the 10-year mandatory minimum. Section 2252 is triggered by prior federal convictions "under . . . Chapter 109A" of the Federal Criminal Code. Chapter 109A lists a range of federal sexual-abuse crimes and categorizes them under the headings "Aggravated Sexual Abuse," "Sexual Abuse," and "Sexual abuse of a minor or ward." To Sotomayor, "[t]his similarity appears to be more than a coincidence." And it would be incongruous for an individual being sentenced under Section 2252 with a prior federal conviction for "sexual abuse" to be subject to a 10-year mandatory minimum, while an individual (like Lockhart) with a prior state conviction for "sexual abuse" to be subject to the mandatory minimum only if the conviction involved a minor or a ward. Accordingly, Sotomayor and the majority concluded that "the text and structure of § 2252(b)(2) confirm that the provision applies to prior state convictions for ‘sexual abuse' and aggravated sexual abuse,' whether or not the convictions involved a minor or a ward." That means ten years (at a minimum) for Lockhart.
Channeling the departed Scalia, Justice Kagan penned a spirited dissent, joined by Justice Breyer. The dissenters invoked another canon of construction, the "series-qualifier canon" (and, like the majority, cited Scalia's Reading Law). Under this rule, "when there is a straightforward, parallel construction that involves all nouns or verbs in a series," a modifier at the end of the list "normally applies to the entire series." So, as Kagan put it, if "a friend told you that she hoped to meet ‘an actor, director, or producer involved with the new Star Wars movie,' . . . [y]ou would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander." Red Sox fans Kagan and Breyer also deflected Sotomayor's baseball analogy. The reason the modifying term "from the Kansas City Royals" seems only to modify the last term in the list (the pitcher) is because the other terms already had their own independent qualifiers ("defensive catcher" and "quick-footed shortstop"). If the phrase were "a catcher, shortstop, or pitcher from the Kansas City Royals" then all three players would have to come from the World Champs. With respect to § 2252, then, Kagan concluded that because "[t]he relevant language—‘aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward'—contains a ‘single, integrated list' of parallel terms (i.e. sex crimes) followed by a modifying clause," the modifying clause should be read to apply to all the parallel terms.
Kagan flipped from the Scalia channel to the Breyer channel briefly to discuss the statute's legislative history, which included a Senate Report on the legislation explaining that the mandatory minimum should apply to an "offender with a prior conviction under . . . any State child abuse law." And she rejected the majority's reliance on the parallel headings of Chapter 109A on the federal side. That Chapter, Kagan noted, actually contains four headings (the fourth being "abusive sexual contact"). "If the drafters of § 2252(b)(2) meant merely to copy Chapter 109A, why would they have left out one of its crimes?" Finally—and here's where Scalia almost certainly would have joined the dissent, based on his questions at oral argument—Kagan invoked the rule of lenity, which provides that the Court should side with the criminal defendant "when the ordinary canons of statutory construction have revealed no satisfactory construction." But in Kagan's view, the rule of lenity is ultimately unnecessary because the "ordinary way all of us use language" insists that the modifier apply to the whole series. To demonstrate that, she ended with a final flourish: "The series-qualifier principle, the legislative history, and the rule of lenity discussed in this opinion all point in the same direction."
Although we suspect Scalia would have joined the dissent in this case, it is a fitting tribute to his influence on the Court, particularly in matters of statutory construction, that both opinions openly courted his approval in absentia.
The Scalia treatment would have been nice in our next case, as well, if only to liven up the spiritless (if oft-discussed) subject matter: ERISA preemption. In Gobeille v Liberty Mutual Insurance Co. (14-181), the Court held that ERISA preempts a Vermont state law requiring all health insurers, including self-insured health plans and plan administrators governed by ERISA, to submit to a state agency a variety of data from paid claims intended to help improve the delivery and cost of health care. The state law had specific requirements for organizing, coding, and submitting the data. Almost 20 states have implemented or are in the process of developing similar databases (which may explain why the Court took the case with no apparent Circuit conflict). Liberty Mutual has a self-insured health plan for its employees nationally, administered by a Blue Cross organization and subject to ERISA, and it objected to Vermont's law on the ground that, as applied to an ERISA plan, the law was preempted by ERISA's own recordkeeping and reporting requirements.
The Supreme Court agreed, holding that allowing 50 states to impose their own set of recordkeeping and reporting requirements in addition to ERISA's would interfere with a fundamental component of ERISA's uniform regulation of plan administration. Writing for the Chief and Justices Thomas, Breyer, Alito, and Kagan, Justice Kennedy discussed ERISA's broad, express preemption provision, which encompasses (among other things) state laws that govern a central aspect of a health plan's administration or interferes with nationally uniform plan administration. Kennedy wrote that preemption "is necessary to prevent the States from imposing novel, inconsistent, and burdensome reporting requirements on plans." Preventing a proliferation of state reporting requirements was an end to itself under ERISA, even though Liberty Mutual had presented no evidence of an actual economic burden. It also made no difference to the Court that ERISA's regulatory requirements are intended for one purpose (to ensure that plans are solvent and that beneficiaries receive their benefits) and Vermont's requirements have a different purpose altogether (to improve the state's health care system). Even absent a conflict in the goals of the federal and state laws, ERISA does not tolerate states imposing their own set of additional rules. Vermont's law is therefore preempted.
Justice Thomas wrote separately to explain that the Court's opinion is faithful to precedent. He would nevertheless welcome in the future a re-examination of whether ERISA's broad preemption provision might in some circumstances intrude on state and local laws that have nothing to do with interstate commerce and so fall outside of Congress's power to preempt the state's exercise of traditional powers to regulate public health. Justice Breyer also wrote separately to emphasize that, while there was a need to prevent a multitude of state regulatory regimes in this area of the law, the federal Secretary of Labor had the power under ERISA to require the same type of reporting and recordkeeping that Vermont's law would have required had it not been preempted. If the requirements were promulgated by the Secretary of Labor, even if they included state-specific variations, they would at least bear the imprimatur of a federal agency with a national perspective.
Justice Ginsburg, joined by Justice Sotomayor, dissented and would have upheld the Vermont law. The dissenters did not share the concerns of the other Justices, given that there was no evidence of a substantial burden to report the information sought by Vermont, and because the purpose of the state law—to better control health care outcomes and costs—was independent of ERISA's purposes to protect a plan's viability and a beneficiary's relationship with the plan. Vermont's reporting requirements therefore do not (as the majority held) intrude on a central feature of ERISA and can co-exist with ERISA's requirements. Justice Ginsburg was particularly concerned about the adverse effect of the Court's holding on the various states' efforts to collect health care information. Those states should not be required to ask the Secretary of Labor to develop the same reporting requirements when those requirements are not even germane to ERISA's core objectives.
That brings us almost up to speed on opinions. As of "press time," the Court had just released a unanimous opinion in Americold Realty Trust v. Conagra Foods (14-1382), holding that, for purposes of diversity jurisdiction, the citizenship of a non-corporate "real estate investment trust" is based on the citizenship of its members, which include its shareholders, and per curiam summary reversals in V.L. v. E.L. (15-648), unanimously holding that the Full Faith and Credit Clause required Alabama courts to enforce a Georgia judgment of adoption and give an adoptive mother custody and visitation rights to the biological children of her former same-sex partner, and Weary v. Cain (14-10008), vacating, over dissents from Justices Alito and Thomas, the conviction of a Louisiana death-row inmate due to the prosecution's failure to disclose material evidence to his counsel.
We'll have more on these decisions next time, as we continue to adjust to the post-Scalia court.