Putsch, or no?

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Scalia's View Prevails in Gun-Crimes Case

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Justice Antonin Scalia thinks that finding a right to gay marriage in the due process clause of the Constitution amounts to a “judicial Putsch.” But on the very same day the gay-rights opinion was announced, Scalia showed what he thinks the due process clause is actually for. He wrote the opinion for the U.S. Supreme Court striking down the clause of the federal law that increases the punishment for felons found in possession of a gun if they have been convicted of three or more violent felonies. The law defines a violent felony as one that “involves conduct that presents a serious potential risk of physical injury to another.” This language, Scalia found, is unconstitutionally vague -- and therefore violates due process.

What's the difference between interpreting the due process clause to protect a fundamental right to marry and interpreting the same exact language to strike down a federal statute as too vague to apply? The four liberals who joined both the gay-marriage decision and Scalia's opinion in Johnson v. United States don't have to worry very hard about the answer, because they applied the due process clause to strike down the law in both. But Scalia does, as does Chief Justice John Roberts, who like Scalia dissented in the gay-marriage case but joined Scalia's opinion here. (Justices Anthony Kennedy and Clarence Thomas concurred separately in the judgment, not joining Scalia's opinion, and Justice Samuel Alito dissented.)

The due process clause prohibits depriving someone of life, liberty or property without due process of law. But, of course, Samuel Johnson was charged under a duly enacted federal statute, and was entitled to an ordinary trial. So where was the violation of his due process rights?

Scalia explained that it violates due process to convict somebody under “a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”

The idea here is sometimes called the idea of legality itself: You can't be punished unless there's a clearly defined crime that you've violated. In the Latin adage, there’s no crime without law: nullum crimen sine lege.

Scalia, in other words, thinks that the due process clause embodies what the court has called “ordinary notions of fair play.”

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But how exactly does the so-called residual clause of the felon-in-possession law violate fair play? Scalia seems to have been most bothered by the words “involves conduct.” If the law had defined a violent felony as one that includes “an element” of physical force, that would apparently have satisfied him. But what does “involves conduct” really mean? In particular, Scalia was bothered that the law lists extortion and burglary as felonies that qualify. In these cases, he pointed out, the violence doesn't come in the crime of blackmail or of breaking and entering -- it comes by association with them.

The law as written, Scalia continued, creates two different kinds of uncertainty: uncertainty about what counts as risk, and uncertainty about how much risk it takes to count as a “serious potential risk.” Should statistics count? If so, what kind? Where should the judges get them?

On its face, Scalia's argument sounds plausible. It expands liberty and presses Congress to be specific -- and, after all, it got six votes.

But on closer examination, there's something more than a little strange about the argument. Is it really so difficult for courts to ascertain whether a given prior felony involved conduct that create a serious risk of harm? Courts make such detailed determinations all the time -- sometimes even in criminal cases, including those involving capital punishment.

And more important, is the criminal’s liberty right to fair play really violated by a greater punishment? It's not as if a criminal setting out to commit a new crime couldn't understand that his (three!) prior felonies might potentially be interpreted as violent, provided he had read the law, as Scalia assumes the criminal might.

Alito, in his solo dissent, made versions of these points. But he also drew attention to what he thinks is really going on in the case: Scalia’s highly personalized objection to the residual clause. Alito pointed out that Scalia “fired an opening shot at the residual clause” eight years ago, then “fired another round” four years later. Each of these shots came in dissent. Now the court as a whole was adopting Scalia's view, in violation of precedents and its corresponding principle of stare decisis.

Alito was clearly very miffed at Scalia's tenacity and success. Indeed, his dissent reflects nothing so much as a tit-for-tat response to Scalia annoyance expressed in an opinion last week about Alito’s gradual efforts to undermine the precedential weight of a decision that Scalia wrote about the right to confront witnesses against you at trial.

The rift between Scalia and Alito is deepening. It's hard to avoid the sense that there's something almost Oedipal going on between the two Italian-American Catholic conservatives of different generations.

What are we to make of Scalia’s one-man crusade against vagueness in criminal statutes? The answer isn't that Scalia is sympathetic to criminals -- that's for sure. Rather, the explanation lies in Scalia’s jurisprudence. He believes in rules, and famously said that the rule of law should be understood as “a law of rules.” Rules should be clear --especially when people are going to prison.

When a justice has a jurisprudential belief that’s deeply held, a majority's worth of other justices often end up getting on board. When it comes to gay marriage, it’s Justice Anthony Kennedy who has a theory, and Scalia excoriates his influence. When it comes to vague criminal laws, the crusader is Scalia, and he thinks it's just fine.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net