The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Re: the vagueness issues in Johnson


Co-blogger Will Baude recently blogged about the Supreme Court's unusual re-argument order in Johnson v. United States, a case on the residual clause of the Armed Career Criminal Act. Over at Re's Judicata, Richard Re has a sharp post on why the Supreme Court's experience trying to tame the ACCA's residual clause may have led to this unusual order. An excerpt:

Part of the answer is that the residual clause is linked to a maddeningly esoteric list of exemplary offenses: "burglary, arson, or extortion" and crimes "involv[ing] use of explosives." Law clerks have been driven to distraction staring at that catalogue, looking for hidden patterns and clues. For a while, the Court, too, tried to extract lessons from this cipher (even though it's set off from the residual clause by the word "otherwise"). And that effort seemed especially necessary in order to honor the term being defined—"violent felony"—as well as to mitigate ACCA's harshness. For many jurists, it was particularly hard to believe that a severe law expressly concerned with violent gun crime should come into play because the defendant drove under the influence-even though driving under the influence is quite obviously "conduct that presents a serious potential risk of physical injury to another" (and so fits the actual text of the residual clause). Alas, the Court failed to translate that intuition into a workable test and then stick to it.

To a great extent, however, the residual clause's downfall stems from the way that the Court supervises the circuit courts. In adopting the "categorical" and then "modified categorical" approach to figuring out what qualifies as a violent felony, the Court effectively transformed the residual clause into a machine for making circuit splits. Under these approaches, whether an offense qualifies as a predicate offense depends on its legal elements, as assessed in the abstract. Thus, the categorization of each and every predicate offense is a pure question of law—and there are gobs of candidate offenses, each with tricky regional variations. Meanwhile, prosecutors keep pushing the envelope, to the point that crimes of absence (like failure to report) or possession (as in Johnson itself) have triggered mandatory minimums. ACCA's circuit-split engine is always running.

By contrast, the Court often resolves the case before it with a squishy test and then kicks the all-important job of "factbound" application back down to juries, trial courts, and courts of appeals. While divergent outcomes may result, there are usually enough factual nuances to preclude clean circuit splits. Sure, the Ninth Circuit may trend one way while the Eleventh trends another, but they can usually do so without adopting contrary legal rules. In this way, the Court frequently avoids having to revisit knotty legal issues for years, even decades. The Court denied itself that luxury in residual-clause cases. Instead, it created a situation where it had to examine and reexamine a high-stakes, complex legal issue that lent itself to fact-dependent sympathies. Even without changes in the Court's composition (which, of course, have also happened), this is a formula for mushy jurisprudence.