Supreme Court Update: United States v. Davis (No. 18-431) and Flowers v. Mississippi (No. 17-9572).

June 27, 2019 Supreme Court Update

Greetings, Court Fans!

On the penultimate D-day of OT18, the Court handed down three decisions, including one of the most anticipated of the term, leaving five for tomorrow morning. The biggie today was Kisor v. Wilkie (No. 18-15), in which the Court declined to overrule the so-called Auer doctrine, under which courts defer to agencies’ reasonable interpretations of their own ambiguous regulations. Nevertheless, in her opinion for a splintered Court, Justice Kagan narrowed the doctrine. Justice Gorsuch, the administrative state’s chief antagonist on the Court, authored a concurring opinion calling for Auer to be overturned. (Technically, the decision was unanimous, as all Justices agreed that the Federal Circuit’s more agency-deferential judgment should be vacated and remanded.)  Another important, but less high-profile, decision was Tennessee Wine and Spirits Retailers Ass’n v. Thomas (No. 18-96), in which the Court held that Tennessee’s 2-year residency requirement for retail liquor licenses violates the “dormant” Commerce Clause and is not saved by the Twenty-First Amendment. Finally, in United States v. Haymond (No. 17-1672), a fractured Court held that a particular section of the federal supervised release statute, which imposed a 5-year mandatory minimum sentence for possessing child pornography while on supervised release, violates the right to trial by jury. Justice Gorsuch’s plurality opinion (joined by Ginsburg, Sotomayor and Kagan), used language calling into question the entire supervised-release process violates the jury-trial right, but Justice Breyer’s controlling opinion concurring in the judgment was limited to the specific child-porn provision, because its mandatory minimum essentially amounts to punishment for a new offense.

We’ll get to these as soon as we can, but for now we’ve got two of the bigger criminal cases of the term, for you: United States v. Davis (No. 18-431) and Flowers v. Mississippi (No. 17-9572). If you’re more of an ERISA type, you can go back to sleep.

First up, in United States v. Davis (No. 18-431), the Court put the final nail into the coffin shared by the various “residual” clauses of federal “crime of violence” definitions, holding that the residual clause of 18 U.S.C. § 924(c), which authorizes heightened penalties for using a firearm in connection with a “crime of violence” is unconstitutionally vague. If you feel like you’ve seen this movie before, you’re not wrong. Davis follows in a more or less direct line from Johnson v. United States (2015) and Sessions v. Dimaya (2018), which each struck down similar residual clauses in other federal statutes defining “violent felonies” or “crimes of violence.” Davis included a bit of a twist, however, in that the Government—and the dissent—argued that this particular residual clause was salvageable if read without using the “categorical approach,” another bogeyman of these sorts of cases. Needless to say, the majority rejected that reading.

Backing up a bit, Respondent Maurice Davis was charged with several counts of robbery affecting interstate commerce and one count of conspiracy after robbing a bunch of gas stations in Texas. The prosecution also added two charges under § 924(c), because Davis had used a short-barreled shotgun in connection with these crimes. The question, then, was whether the robbery and conspiracy crimes qualified as “crime[s] of violence” under § 924(c)(1)(A). That subsection defines the term “crime of violence” in two subparts—the elements clause and the residual clause. Under the elements clause, a crime of violence is a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Under the residual clause, a crime of violence is a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Davis was convicted of all counts (except for one robbery count). The § 924(c) convictions added yielded a mandatory minimum sentence of 35 years, to run consecutively to the fifteen years he received for the other convictions. On appeal, Davis argued that his sentence should be overturned because § 924(c)’s residual clause is unconstitutionally vague. After the Supreme Court issued its decision in Dimaya striking down an almost identical statute on vagueness grounds, the Fifth Circuit held that § 924(c)(3)(B) is also unconstitutional. It therefore vacated one of the 924(c) convictions (the one that charged conspiracy as the predicate crime of violence), but upheld the conviction on the 924(c) charge predicated on robbery under the still-constitutional elements clause. The Fifth Circuit’s decision deepened a circuit split over whether § 924(c)’s residual clause is unconstitutionally vague, so the Supreme Court granted cert.

In a 5-4 decision, with Justice Gorsuch joining (and writing for) the four more liberal Justices, the Supreme Court affirmed the Fifth Circuit, holding that § 924(c)(3)(B) is unconstitutionally vague. As Justice Gorsuch explained, the vagueness doctrine “rests on the twin constitutional pillars of due process and separation of powers.” The Court, he noted, has already applied these principles to strike down “two statutes that bear more than a passing resemblance to § 924(c)’s residual clause,” in Johnson and Dimaya. Those decisions found nearly identical clauses unconstitutional because the statutes required judges to use a “categorical approach” determine whether an offense qualifies as a violent felony or crime of violence. Under the categorical approach, judges disregard how the defendant actually committed the offense and instead imagines the degree of risk that would accompany an idealized “ordinary case” of the offense. Because “the imposition of criminal punishment can’t be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined ‘ordinary case,’” the residual clauses of the ACCA and § 16(b) were held unconstitutional. And if the same approach applies to § 924(c)’s residual clause, it would follow that it also must be struck down.

The Government argued, however, that if the Court simply abandons the categorical approach, then § 924(c)(3)(B) could be read differently than the unconstitutional residual clauses in Johnson and Dimaya, and upheld. Justice Gorsuch rejected this argument, concluding that the categorical approach is compelled by the text, context, and history of § 924(c)(3)(B). First, the Court has already read the identical language of 18 U.S.C. § 16(b) to require a categorial approach, and what is true of § 16(b) must also be true of § 924(c)(3)(B). In both instances, the statutes define a “crime of violence” as an offense that “by its nature,” involves a certain type of risk. Moreover, the history of the two statutes show that Congress intended them to be read together. Justice Gorsuch also rejected the Government’s effort to save § 924(c)(3)(B) by applying the cannon of constitutional avoidance. The Government argued that the Court was obligated to adopt any “fairly possible” reading § 924(c)(3)(B) would save it from being unconstitutional, and that abandoning the categorical approach in favor of an approach that looked to the defendant’s actual offense conduct was a fair reading. Justice Gorsuch argued that, in criminal cases, the canon of constitutional avoidance must yield to the rule of lenity. While it is true that when presented with two fair alternatives, the Court has sometimes adopted the narrower construction of a criminal statute to avoid having to strike it down under a broader interpretation, the Court has never invoked the canon to expand the reach of a criminal statute in order to save it. Doing so would risk offending the very same due process and separation-of-powers principles on which the vagueness doctrine itself rests.

In dissent, Justice Kavanaugh (joined by Thomas, Alito, and—for the most part—Roberts), began with a lengthy account of how bad gun violence was in the era when § 924(c) was adopted and amended—between the 1960s and 80s. Though he acknowledged that many factors have contributed to the major reduction of violent crime over the last 30+ years, he insisted that laws like § 924(c), which impose steep penalties on those who commit violent crimes with firearms, have played a major role. He criticized the majority for “suddenly” seeing a problem in a statute that has been used in thousands of prosecutions over three decades. Though he recognized that the majority’s decision found support in Johnson and Dimaya, he argued that those cases were different because they “involved statutes that imposed additional penalties based on prior convictions,” whereas § 924(c)(3)(B) focuses on the defendant’s current conduct during the charged crime. The categorical approach might be necessary in prior-conviction cases in order to avoid the “difficulties and inequities of relitigating past convictions in minitrials conducted long after the fact,” as well as potential Sixth Amendment concerns. But those concerns are not present in cases involving § 924(c)(3)(B), which operates entirely in the present, and requires the same jury to assess the defendant’s conduct to determine whether it poses a substantial risk of harm. Therefore, “[t]here is no need to follow Johnson and Dimaya off the cliff here.” Instead, Justice Kavanaugh and the other dissenters would read § 924(c)(3)(B) like the dozens of other “substantial risk” statutes that are used in federal and state criminal law: “to focus on the actual defendant’s actual conduct during the actual underlying crime, not on a hypothetical defendant’s imagined conduct during an ordinary case of that crime.” And even if the most natural reading of the statute did not compel an actual-conduct approach (though Kavanaugh believed it did), the constitutional-avoidance canon required the Court to read it that way. (Notably, the Chief Justice did not join in the portion of the dissent invoking the canon of constitutional avoidance.)

Next up, in Flowers v. Mississippi (No. 17-9572), the Court took up a case so riveting that it has its own podcast.

Back in 1996, someone murdered four people at a furniture store in Winona, Mississippi. Total population of Winona: about 5,000—53 percent of whom are black. Mississippi prosecutors decided that a black man named Curtis Flowers had done the gruesome crime. Since then, Flowers has been tried six times for the murders. A single white man—District Attorney Doug Evans (who is currently running unopposed for re-election)—was the lead prosecutor in all six trials. The first trial resulted in a conviction and death sentence, but the Mississippi Supreme Court reversed for prosecutorial misconduct. In the second trial, the trial judge found that Evans had discriminated on the basis of race in the peremptory challenge of a black juror. That black juror was seated as a juror. This trial resulted in a conviction and death sentence, but again the state Supreme Court reversed for prosecutorial misconduct. The third trial ended with another conviction and death sentence, but again the Mississippi Supreme Court reversed—this time because Evans had improperly exercised peremptory challenges on the basis of race. A fourth trial resulted in a deadlocked jury and a mistrial, as did the fifth. Finally, in the sixth trial, Evans struck five of the six potential black jurors in the jury pool, resulting a panel with eleven white jurors and 1 black juror. Flowers was convicted and sentenced to death again. By a divided 5-4 vote, the Mississippi Supreme Court found no Batson violation and this time upheld Flowers’ conviction and sentence.

The U.S. Supreme Court, however, reversed 7-2. Writing for the majority, Justice Kavanaugh began his opinion with a straightforward recitation of the facts and procedural history before launching into what the dissent derisively called a “a paean to Batson v. Kentucky.” (More on the dissent below.) Batson held that the Constitution forbids the striking of a prospective juror on the basis of race. When a defendant asserts that a juror was struck on the basis of race, the prosecutor must articulate a race-neutral reason for the strike. And the trial judge must then determine whether the prosecutor’s stated reasons are real or pretextual. Kavanaugh has previously shown an interest in rigorous enforcement of Batson. As a law student at Yale, Kavanaugh’s law review note proposed a procedure that courts should use when inquiring into prosecutorial motives for peremptory challenges. In Flowers, however, Kavanaugh was careful to note that his opinion “break[s] no new legal ground”; rather, it “simply enforce[s] and reinforce[s] Batson by applying it to the extraordinary facts of this case.”

According to Kavanaugh, four facts viewed together required reversal. First, in the six trials combined, Evans used his peremptory challenges to strike 41 of 42 black prospective jurors. This history—stretching back well beyond the most recent trial that was on direct appeal—could not be “ignore[d]” or “take[n] . . . out of the case.” Indeed, Evans’ “relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” Second, in that most recent trial, Evans used peremptory strikes against five of the six black prospective jurors. The fact that the Evans allowed one black person on the jury could not “insulate the State from a Batson challenge.” Third, at that sixth trial, Evans engaged in “dramatically disparate questioning of black and white prospective jurors.” The numbers were indeed stark: Evans asked the 5 black prospective jurors who were struck a total of 145 questions, and he asked the 11 seated white jurors a total of 12 questions. “On average, therefore, the State asked 29 questions to each struck black prospective juror. The State asked an average of one question to each seated white juror.” This kind of lopsided questioning is itself “evidence of the prosecutor’s objective” to “find some pretextual reason—any reason—that the prosecutor can later articulate to justify what is in reality a racially motivated strike.” Fourth and finally, the record of jury selection at the sixth trial shows that the peremptory strike of at least one prospective black juror (Carolyn Wright) was “motivated in substantial part by discriminatory intent.” Wright would seem like a great juror for the prosecution: she strongly favored the death penalty and had a family member who was a prison security guard. Evans said he struck Wright because she knew several defense witnesses and had worked at the local Wal-Mart where Flowers’ dad also worked. This might be a valid reason in other cases, but this trial took place in a small town and many prospective jurors knew lots of people with connections to the case. Because the Constitution prohibits striking even a single juror on the basis of race, Wright’s exclusion required reversal.

Justice Alito joined the majority opinion in full, but he penned a brief concurrence emphasizing the sui generis nature of this case. He described it as “highly unusual” and “likely one of a kind.” He also focused on the fact that all six cases were tried in the same small town “where, it appears, a high percentage of potential jurors have significant connections to either [Flowers], one or more of the victims, or both.” The result, Alito noted, might well be different “in a larger jurisdiction” where a prosecutor “gave any of these reasons for exercising a peremptory challenge.” But this was “not an ordinary case,” and so it “cannot be analyzed as if it were.”

By now, you can likely guess who dissented. Justice Thomas’ lengthy dissent (joined in large part by Justice Gorsuch) did not mince words. First, he excoriated the Court for granting cert in what all agreed was a highly fact-specific case. He suggested that the Court took cert out of a bias against Southern state courts, which “are familiar objects of the Court’s scorn, especially in cases involving race.” Turning to the merits, Thomas concluded that the five challenged strikes in the sixth trial were “amply justified on race-neutral grounds.” He criticized the majority’s disparate questioning statistical analysis as “irrelevant and misleading” because “correlation is not causation.” And he disputed the majority’s conclusion that the peremptories in the previous trials were based on race. Finally, in the only portion of the dissent that Gorsuch did not join, Thomas criticized Batson itself, outlining several reasons why that 33-year-old case rests on shaky constitutional grounds.

Whether this extraordinary case has yet another chapter ahead remains to be seen. According to media reports, DA Doug Evans is considering whether to re-try Flowers for a seventh time.

That’s all for now. We’ll be back later today with news from the Court’s last decision day.

Dave and Tadhg