The Supreme Court recessed for the summer after their last conference (the wrap-up conference) on Monday afternoon. After the order from that conference was issued on Tuesday morning, the Supreme Court has filled twenty-nine of the thirty argument slots for the fall. (A little below average as they normally have some carry-over for the January argument session. )
Monday featured three significant opinions — the Texas abortion case, Governor McDonnell’s corruption case, and an interesting case involving gun control and domestic violence. These cases saw some interesting combinations of Justices as very different judicial philosophies combine to reach the same result.
The abortion case was the cleanest case of the three in terms of explaining the line-up of the justices. The four liberal justices voted to strike down the abortion regulations. Justice Kennedy joined them. Given that Justice Kennedy was one of the three justices that came up with the “substantial burden” standard and how close the Texas laws come to de facto outlawing abortion in the state (or at least making it physically impossible to provide abortions to everyone in Texas who wants an abortion), it is no surprise that he is the conservative justice who said that those laws were just one step too far.
The decision on Governor McDonnell was unanimous — finding that the charges against him required an official act, and that merely arranging or having a meeting was not an official act. While the opinion was unanimous, there was a lot of different strands to this case. First, there were arguments about the type of acts that Congress was covering. Second, particularly for those justices that see campaign spending as speech, there was fear of how a broad reading of official acts could turn campaign donations into bribery. Third, there were those concerned about over-reaching prosecutors, particularly in the context of federal powers, that would leave the definition of criminal in the eye of the prosecutor. While the Supreme Court did not completely bar a re-trial, it is difficult to see how the charges will survive.
Finally, there was Voisine. Voisine involved the federal law banning certain individual from possessing firearms. In particular, that statute bars those convicted of a misdemeanor crime of domestic violence. from possessing a gun. The definition of a crime of domestic violence is a crime against a domestic relation that “involves the use of force.” The particular issue in Voisine was what mental state is required before an offense qualifies. (Modern criminal law recognizes four mental states: purposeful, knowing, reckless, and criminal negligence.)
In past cases, the Supreme Court had found that a mental state of knowing would qualify, and the issue in this case was whether reckless would. Justice Kagan writing for six justices found that it would — noting, in part, that while the common law had a default mental state of knowing, modern criminal law uses a default mental state of reckless. Because most states allow a conviction for a misdemeanor domestic violence offense upon a showing of a mental state of purposeful, knowing, or reckless, a holding that only domestic violence offenses requiring a showing of knowing triggered the federal prohibition would mean that Congress adopted a statute that only covered domestic violence misdemeanors from one-third of the states.
Justice Thomas dissented and was joined in part by Justice Sotomayor. In the part joined by Justice Sotomayor, Justice Thomas argued for why the majority was wrong on the merits. This part reflects a strange marriage that occurred in several cases this year and will continue in future years of the most liberal and most conservative justices. Justice Sotomayor is concerned about over-incarceration and selective enforcement against minorities; a broad reading of criminal laws contributes to these problems. Justice Thomas, on the other hand, is primarily concerned with federal criminal law; what would be fine for a state prosecution represents an intrusion into the proper realm of state power when done by a federal prosecutor. While the motivation comes from different concerns with the criminal justice system; on federal prosecutions, the agenda is the same — read the statute narrowly — as demonstrated by both justices joining the McDonnell majority.
Where Justice Sotomayor did not join Justice Thomas (and fortunately Justice Thomas spoke only for himself) was on the Second Amendment argument. Justice Thomas thinks a life time ban on owning a gun for beating your wife is an infringement on your constitutional right to own a gun. Justice Thomas characterizes as dicta (basically non-binding parts of an opinion) prior discussions that the Constitution permits some restrictions on gun ownership based on criminal record. The fact that there is a strand of Second Amendment thought — floating through the states in forms such as “stand your ground” and “constitutional concealed carry” — that believe that the Second Amendment rights are more absolute than other rights should be scary to folks. Another reason why progressives need to make sure that the next three Supreme Court vacancies are filled by Hillary Clinton, not Donald Trump.
