With the ascension of Justice Brett, it’s easy to look at the Supreme Court as the purely outcome-oriented, political body that it has become. Kavanaugh promised to act like that, and on the hot-button political issues, you can pretty much predict the result based on the preferred outcomes of the president that appointed them.
But with cases where the preferred political result is less clear, you can still find close cases that surprise you. You can still find justices wrestling with the law, both in the abstract and in an outcome-oriented fashion. You can still close your eyes and pretend that the Supreme Court is just trying to noodle through complex issues, as opposed to imposing the will of one party or the other.
Stokeling v. United States is one of those close, party bending cases. The decision came down today, 5-4. But it was a fun 5-4, with Clarence Thomas writing the majority opinion, joined by Alito, Gorsuch, Brett, and… Stephen Breyer. Sonia Sotomayor wrote the dissent, joined by Ginsburg, Kagan, and Chief Justice John Roberts. There were no concurrences, just a straight up 5-4 decision with an unusual lineup.
At issue was the Armed Career Criminals Act (ACCA). It’s the “three strikes” law, which provides for harsher mandatory sentences for people who have committed three “violent” crimes.
During oral arguments earlier this year, the justices were actually making fun of how desperately this law is in need of an overhaul. At issue in Stokeling was the definition of “violent.”
Stokeling was busted robbing a restaurant where he, apparently, worked. He had a gun in his backpack while committing the crime, and it was his third strike.
Stokeling challenged his second strike, arguing that a previous robbery was not “violent,” under the meaning of the ACCA.
The majority ruled against Stokeling, and we were treated to a judicial discussion of the force necessary to become “violent.” The majority basically viewed any force that would be enough to satisfy the common law meaning of “robbery” would be enough to satisfy “violence” for the ACCA.
Thomas’s majority opinion seemed to go against the controlling precedent of Johnson v. U.S. Johnson held that the ACCA’s residual clause, which criminalized any “violent” crime, was unconstitutionally vague. So now the ACCA only applies to specified crimes. But by reducing nearly every robbery to a “violent” crime, it seems that the majority has backdoored a residual clause back into the statute.
You’d wonder why Breyer signed onto this, as it ratchets up nearly any offense to a potential “strike” under this draconian law. In her dissent, Sotomayor argues that the majority opinion could be read to elevate pickpocketting to a “violent” robbery.
From the holdings, it feels like Stokeling is getting hit for a very minor crime. But then… and I had to search a bit, for the fact surrounding the robbery at issue:
“During that incident, Stokeling and an accomplice “grabbed [the victim] by the neck and tried removing her necklaces” while she “held onto” them.”
Umm… that seems violent! I mean, grabbing somebody by the neck and trying to rip their necklace off doesn’t sound like a close case. It sounds like something that happened to Batman’s parents.
I think the inherent violence of the crime influenced Breyer above and beyond the hysterical implications of Thomas’s opinion. Sotomayor has the better argument in the abstract, but Stokeling choked a woman and tried to rip her necklace off.
I think Breyer got the right outcome (I mean, the ACCA is a terrible law, but if it’s going to exist we should apply it correctly), under a bad decision. Sotomayor had the right argument but felt wrong about the facts of the instant case.
The law is strange like that, sometimes. But it’s much more intellectually interesting when the holding isn’t a foregone conclusion.
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.
Stephen Breyer Is So Afraid Of Criminals He Sided With Clarence Thomas curated from Above the Law
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