Can you give me a hint?

Photographer: Alex Wong/Getty Images

Courts Channel Scalia and Get Different Answers

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.”
Read More.
a | A

Justice Antonin Scalia was conservative in just about all the ways a person can be conservative. But he did have a little pocket of liberalism when it came to criminal statutes: He thought they were unconstitutional if they were too vague. In one of his last opinions for the U.S. Supreme Court, he persuaded his colleagues to strike down part of the Armed Career Criminals Act because its definition of “violent felony” was unconstitutionally vague.

And so Scalia lives on through that precedent. An appellate decision last week has deepened a split among the circuit courts of appeal about whether the 2015 decision, Johnson v. U.S., also invalidates the federal law that defines the words “crime of violence” for purposes of giving defendants longer sentences when they have committed such crimes in the past.

The justices will now have to revisit Scalia’s Johnson decision and decide how broadly it applies -- without Scalia there to guide them.

The case before the Supreme Court in 2015 had to do with what was called the “residual cause” of the federal law that increases penalties for people previously convicted of violent felonies who are found in possession of a gun. The clause defined violent felonies as those involving “conduct that presents a serious potential risk of physical injury to another.”

QuickTake Mandatory Minimums

Scalia’s opinion said two things made this definition impermissibly vague. The first was that it “leaves grave uncertainty about how to estimate the risk posed by a crime.” That’s because it’s hard to say whether a crime defined abstractly -- as opposed to what particular criminal did -- poses a serious risk of physical injury. To use Scalia’s example, “Does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence?”

Scalia’s second problem with the law was that the phrase “serious potential risk” was “difficult to apply” consistently. Courts were all over the map about its meaning. Some relied on statistics, others on intuition. Scalia listed five types of uncertainty that led to the judicial inconsistency. All of them had to do with the probabilistic nature of the phrase “serious potential risk.”

So much for the precedent -- what about the sentencing enhancement law that is now splitting the federal courts?

U.S. sentencing guidelines prescribe significant additional penalties -- eight levels in the guidelines’ arcane system -- if a person convicted of a crime has been previously convicted of an aggravated felony. The guidelines define aggravated felony as one that meets the definition of “crime of violence” found in another federal statute, 18 U.S.C. § 16(b).

That law in turn defines a crime of violence as a felony that “by its nature, involves a substantial risk that physical force … may be used in the course of committing the offense.”

You can see the similarity to the felon-in-possession law right away. That law, struck down by the Supreme Court, used the phrase “serious potential risk of physical injury.” This one speaks of “substantial risk” of “physical force.”

Three courts of appeal -- the 6th, 7th and 9th circuits -- have held that the similarity between the two laws means that the sentencing-enhancement law should be struck down as unconstitutionally vague, in line with Scalia’s Johnson decision. They reasoned that both of Scalia’s concerns about the other law apply: It’s hard to know whether a crime “by its nature” involves a substantial risk of physical force. And it’s hard for judges to apply it consistently.

But the 2nd Circuit upheld a federal law that’s identical to the enhancement law. And last week the 5th Circuit joined the 2nd Circuit in upholding the enhancement law, deciding that it’s actually different from the felon-in-possession law invalidated by Scalia’s decision.

To do so required some fancy legal footwork. The 5th Circuit’s opinion acknowledged that there were superficial similarities between the two laws. But it claimed that a closer reading of both showed that their differences outweigh their similarities.

First, the court pointed out that the felon-in-possession law speaks of a risk of “physical injury” whereas the sentencing-enhancement law speaks of “physical force.” Force, the court said, is “more definite” than injury. Furthermore, the court pointed out, the enhancement law says that the risk of force must arise “in the course of committing” the offense, a phrase absent in the felon-in-possession law, allowing courts to consider whether the injury might have arisen after the crime had been committed.

With respect to Scalia’s second point, about the difficulty of computing risk, the 5th Circuit said that Scalia’s main worry had to do with the fact that the felon-in-possession law required judges to make their assessment of substantial risk in relation to four crimes specifically mentioned in the statute: burglary, arson, extortion and crimes involving the use of explosives. That, said the 5th Circuit, made the probability assessment especially difficult. But no similar list occurs in the enhancement law -- and judges can make probability determinations perfectly well.

It’s fascinating to ask what Scalia himself would’ve said. On the one hand, Scalia was an exponent of narrow interpretation of precedents, including his own. His innate conservatism could conceivably have led him to a narrow reading of his own 2015 decision. Then there’s the fact that Scalia long hated the residual clause of the Armed Career Criminals Act, but had no special objection to the enhancement law.

On the other hand, Scalia might not have liked to see his own decision nitpicked to distinguish it from a nearly identical situation.

For my money, the similarity argument seems stronger. Scalia’s signature jurisprudential slogan was that the rule of law is a law of rules. If his 2015 decision announced a rule, it should apply in similar cases. Unfortunately for Scalia -- or maybe fortunately -- this aspect of his legacy will be worked out by his former colleagues, perhaps eventually with his replacement at the bench.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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

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