Supreme Court

The Supreme Court's First Divided Opinion of the Term

A 5-4 decision, but not along the lines we usually expect.


The Supreme Court has issued seven signed opinions in argued cases thus far this term. Six of these opinions were unanimous. The seventh, issued this morning, was a 5-4 decision, but not along the lines many would expect.

Justice Thomas wrote the opinion for the Court in Stokeling v United States, holding that a robbery offense that requires the defendant to overcome a victim's resistance is an offense that requires the use of "physical force," and can thus qualify as a "violent felony" under the Armed Career Criminal Act (ACCA). He was joined by Justices Breyer, Alito, Gorsuch and Kavanaugh. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan, and the Chief Justice.

That Justice Breyer joined the majority in a criminal law case like this is not particularly surprising. He has the occasional tendency to cross over in some criminal law cases. That the Chief Justice joined the dissent, however, is a bit more surprising.

Not only is this the first divided opinion of the term, it is also the first "second" opinion of the term. That is, Justice Thomas is the first justice to author a second opinion in an argued case. Justices Ginsburg, Kavanaugh, Gorsuch, and Breyer have authored one signed majority opinion each thus far this term, as has the Chief Justice. Justice Sotomayor is also the first to author a dissent. Justice Alito and Kagan have yet to issue an opinion in an argued case. [Update: I neglected to note that Justice Ginsburg has also written a concurrence, in addition to writing the first opinion of the term. So she has authored two opinions in argued cases, but only one for the Court.]

[Note that the above refers to "signed" opinions. This is because the Court has issued two per curiam opinions thus far this term. Whichever justice was responsible for those opinions, they were not signed, so cannot be credited to any particular chambers. The above also does not account for opinions respecting orders, of which there have been several thus far this term, including eight by Justice Sotomayor and three by Justice Gorsuch.]

NEXT: At Least One Cheer for Law Reviews

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  1. The divide (issue) in this case is one of statutory interpretation vs interpretation of what the statute should say.

    Based on the opinion, the facts in the case fell within the statutory definition.
    Based on the dissent, the facts fell outside what the dissenters felt how the statute should have been written.

    1. A bigger concern is how you get 4 dissents in what is a cut & dry statutory interpretation case.

      1. I’m of the opinion that just as juries should issue unanimous verdicts, so should appeals courts; if learned judges with vast experience can’t agree on a law, then the law should be voided or the case decided in favor of individual rights.

        1. Interesting idea. I just wonder how it would play out in practice.

      2. Judicial authoritarianism

      3. Because of prior precedent that suggested Robbery was something a little more than common law robbery and closer to a clearly violent offense not just slight touching. I tend to agree that common law robbery makes this case pretty cut and dry and I honestly would have expected 6-3 but the precedent made it a bit murky.

  2. Frankly, I found the 8-0 decision in New Prime Inc. v. Oliveira much more interesting – not for the issue presented, which was a straight forward matter of statutory interpretation, or for the holding, but for the Notorious RBG’s utterly gratuitous 2-page concurrence. RGB’s concurrence had nothing whatsoever to do with the case at bar, was completely irrelevant to the issue presented or to the holding, and addressed matters neither raised nor briefed by the parties. It was thrown in simply as a way to say, “while I agree that generally statutes should be construed based upon the meanings given the terms used at the time the statute was enacted, I reserve the right to make up a completely different rule whenever it strikes me as convenient.”

    No wonder the Notorious RGB is such a “liberal” icon! The left LOVES judges and justices willing to just make it up to reach whatever result strikes them as right under the circumstances. Rule of law? We don’t need no stinking rule of law!

    1. Ginsburgs concurring opinion “Congress, however, may design legislation to govern changing times and circumstances. See, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 14) (“Congress . . . intended [the Sherman Antitrust Act’s] reference to ‘restraint of trade’ to have ‘changing content,’ and authorized courts to oversee the term’s ‘dynamic potential.'” (quoting Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 731?732 (1988))); SEC v. Zandford, 535 U. S. 813, 819 (2002) (In enacting the Securities Exchange Act, “Congress sought to substitute a philosophy of full disclosure for the philosophy of caveat emptor . . . . Consequently, . . . the statute should be construed not technically and restrictively, but flexibly to effectuate its remedial purposes.””

      1. Forget it Joe, he’s rolling.

        1. Yeah, let the goobers have their two years of last-gasping.

          In some ways, anyway.

          1. “have their two years of last-gasping.”

            You don’t seem to understand how the Supreme Court works.

            1. You may lack understanding of how the Supreme Court will work in a few years.

              I encourage you to review the recent enlargement of the Arizona Supreme Court.

          2. Given the choice of so-called goobers and people who think so much of themselves like you, I’ll take the goobers. Your utterances are nothing but slights on others.

          3. But enough about Alexandria Occasional-Cortex…

      2. Read this early today.
        I had the same thought. Why write this? Of course the answer is obvious.
        Case law rules!

      3. “Congress . . . authorized courts to oversee the term’s ‘dynamic potential.'” So, in other words, in RGB’s view, Congress delegated to the Courts the authority to set the country’s economic policy in matters of antitrust. And you are OK with that? Because I’m not. If that is in fact what Congress meant, then it is an abdication of its authority and its duty to set policy. But, worse, it grants to courts an authority far removed from the judicial function and utterly inappropriate for a branch of government which is, by design, independent of political control.

        1. Diver – we are in concurrence – RBG believes her job is to interpret statutes based on her policy preference

          1. I mean, you quoted it right there – Congress sought to substitute a philosophy of full disclosure for the philosophy of caveat emptor. That’s not HER policy preferences she’s using, it’s Congressional intent.
            Feel free to yell at her for being nontextual, but don’t pretend she’s not laid out consistent and relevant reasoning.

            1. You do realize, don’t you Sarcastro, that defining policy preferences with a sufficiently high degree of generality would justify just doing away with Congress altogether? After all, the Constitution establishes several policy preferences – if they aren’t obvious to you, try looking in the emanations from the shadows of penumbras. What more do we need? Congress is unnecessary, we can just let the courts how to apply those policy preferences to whatever circumstances may arise.

              1. Congress is making the decision, though, and can take away that decision. Your argument is that it would be more appropriate for the Judiciary to ignore what Congress is saying.

    2. The notorious red green blue.

  3. Justice Breyer looking for mercy when he is replaced by a Trump nominee?

    1. Some of you guys just are not preparing yourselves for the glorious week in which Barack Obama and Elizabeth Warren (with enough others to constitute a majority) become Supreme Court justices in a few years.

      To understand this observation, check recent events with respect to the enlargement of the Arizona Supreme Court.

      1. Please seek the medical attention that you so obviously need.

        1. He is already. Arthur posts during the periods he is allowed to leave his room at the hospital and use the computer in the common area. Just be patient and he will go away when the orderly comes to take him back to his room for his meds.

      2. “My wish fulfillment fantasies keep me going. And my hatred of Americans.”

      3. I finally figured it out: RALK is exactly what OBL tries to be, only he’s actually good enough that nobody sees it for parody. Meanwhile OBL is a parody of a phantasm which exists only in his own tortured mind.

      4. Please stop going there. Stacking the Supreme Court ain’t the answer for almost anything. And in any event, there’s the sauce-for-goose-sauce-for-gander issue, aka unintended consequences.

        1. Stacking the Supreme Court ain’t the answer for almost anything.

          Nobody tell Mitch McConnell.

  4. “That the Chief Justice joined the dissent, however, is a bit more surprising.”

    The least surprising thing ever.

    1. Yes, I’d say so; It really looks like the Chief Justice decided to join the liberal wing of the Court. Replacing RBG might give the conservatives a 5-4 majority, but no 6-3.

      1. Predicting Kavanaugh a bit early in the game aren’t we?

        1. Yes. Gorsuch too really.

          1. I did say “might”.

    2. How does it work with you guys?

      The first one to call the other RINO wins?

      Kinda like calling dibs?

      1. They are CINOs, not RINOS

        Since White, your side always picks obedient justices. We want that.

        1. Since White, your side always picks obedient justices. We want that.

          Uh, if this were actually a conservative-liberal issue, you do see that Breyer is on the other side from Roberts, right?

          And, no, “we” don’t want that. Only extremely pathetic partisan political hacks want that. “We” want judges who use their best judgment as to what the correct decision should be.

      2. Naw – that just sets the stage for the checkmate move – which as always involves mustachioed Austrian vegetarians with one testicle.

  5. Maybe someone can enlighten me – someone’s being designated an armed career criminal even though four Supreme Court Justices say he’s not. Is this what proof beyond a reasonable doubt looks like?

    1. BaRD only applies to the facts, not to the statutory construction or laws or to the guarantees of the constitution. But you knew that.

      (1) It was proven BaRD that the defendant previously committed some offense
      (2) The law is that this offense qualifies for a sentencing enhancement.

      1. “But you knew that.”

        Knew what? That this is how the system works? Just as you presumably know that the Supreme Court can’t “certify” issues to Congress?

        Maybe, as with your certification idea, I was expressing disagreement with the working of the system.

        1. The fundamental failure here is the absurd notion that juries were introduced into dispute resolution because they, with all their forensic and other types of experience, are the logical choice to best judge the facts of a case.

          In reality, the entire purpose of juries is and could only ever have been to judge the justice of the law, in which case things like sentence enhancements and “violent” status should be entirely under their purview.

          1. With statutory sentences being the upper limit, of course.

          2. True, but if there’s one thing the community of people with legal degrees agree, it’s that the power of people in the courtroom without legal degrees should be minimized.

            If they thought they could get away with imposing the Napoleonic system of justice on America, they’d do it in a heartbeat. But since they can’t, they settle for minimizing the role of juries, and lying to them about what they’re entitled to do.

  6. SCOTUS cases about the ACCA don’t count. The Court itself has explicitly acknowledged as much while groping for a workable interpretation.

    In a more rational world, the Court would certify it to Congress to figure out a better statute.

    1. In an even more rational world, the Court would limit federal criminal law to uniquely federal crimes. Stokeling was investigated and arrested by the Miami Beach police, for regular old burglary, and it was the Miami Beach police that found the gun. I’m curious as to how exactly he wound up in federal court (unless Florida doesn’t have a felon-in-possession statute–then I get it), but there’s certainly no need for it.

      1. Article 3, Section 2 of the constitution (as amended by the 11th amendment) explains how issues that are not related to federal law end up in federal court. The Supreme Court is the ultimate appellate court for all other courts regardless of the jurisdiction of the law. This is ingrained in our constitution from the beginning.

        1. He was convicted in a federal district court of a violation of a federal law, then appealed to a federal appellate court, then appealed that decision to the Supreme Court, but thanks for trying.

      2. felon-in-possession

        I wasn’t aware this was a moral crime in need of official sanction. It seems like an indecent and immoral law which should be stricken from any books in which it resides, since “felon” has become a meaningless epithet and the constitutionally dangerous shouldn’t be released into society anyway.

  7. Starting today, however, the phrase “physical force” in
    ?924(e)(2)(B)(i) will apparently lead a Janus-faced exist-
    ence. When it comes to battery, that phrase will look
    toward ordinary meaning; when it comes to robbery, that
    same piece of statutory text will look toward the common
    law. To the extent that is a tenable construction, the
    majority has announced a brave new world of textual
    interpretation. To the extent that a phrase so divided
    cannot stand, meanwhile, one could be forgiven for think-
    ing that the majority, though it claims to praise Johnson,
    comes instead to bury it.

    No comment, just a nice paragraph.

    1. Frankly, the dissent has this one down solid. I seriously doubt that many posters here have actually read this decision.

      1. I did. They have a decent argument, particularly in light of Johnson, but I’m not impressed with the dissent’s dismissive attitude towards the victims. Perhaps they should have checked how many glorified purse snatchings result in broken hips when the elderly victims reflexively cling to their purses for a moment before dismissively treating that at self-evidently nonviolent. And I don’t buy their premise that because the victim didn’t escalate the confrontation to the point where a lot of force was required, the perpetrator didn’t commit a crime of violence. I’m not sure that considering the use of force nonviolent if the person you are using it on is so much weaker that they can’t effectively resist is the way to go.

        1. jph12: “And I don’t buy their premise that because the victim didn’t escalate the confrontation to the point where a lot of force was required, the perpetrator didn’t commit a crime of violence.”

          Agreed. Or else armed robbery with a handgun wouldn’t be a violent crime unless the vic was actually injured, which isn’t often.

        2. And I don’t buy their premise that because the victim didn’t escalate the confrontation to the point where a lot of force was required, the perpetrator didn’t commit a crime of violence. I’m not sure that considering the use of force nonviolent if the person you are using it on is so much weaker that they can’t effectively resist is the way to go.

          That’s clearly a non-sequitur given the discussion presented in the dissent. They didn’t say that the only way to establish “violence” was for the accused to have to overcome serious resistance, but merely that the Florida offense called “robbery” is really “glorified larceny”, as it doesn’t require substantively different actions from what is elsewhere considered larceny, and that the distinction doesn’t necessarily rise to the level of violence, and that therefore you can’t automatically assume that a Florida “robbery” is violent. Several of their examples demonstrate this point aptly, I found.

          It’s basically the distinction between “any degree of force whatsoever”, and “violence”, which I think any reasonable person would acknowledge to be in the common understanding a significant distinction, at least outside the context of their “lawn odor” reflex having been triggered.

          1. No, it’s not a non-sequitur. This is an actual quote from the opinion. “Florida courts have held the same for a thief who pulls cash from a vic-tim’s hand by ” ‘peel[ing] [his] fingers back,’ ” regardless of “[t]he fact that [the victim] did not put up greater re-sistance.” Sanders v. State, 769 So. 2d 506, 507 (Fla. App. 2000).” The court chose to highlight the line about the victim not putting up greater resistance. But why didn’t the victim put up greater resistance (I looked it up)? Because he was afraid of what the perpetrator would do in response. So if the victim had been a manly man who put up more resistance, and got punched in the face, it would be a crime of violence. But because the victim wasn’t a manly man, and didn’t put up more resistance because he was afraid of getting punched in the face, it’s not a crime of violence.

            Or consider the glorified purse snatchers that the dissent defends. So if a strong young woman holds on to the strap and gets dragged down the street before finally letting go, that could qualify as a crime of violence. But if the glorified purse snatcher chooses a little old lady, who is only able to hold on to the purse long enough to be knocked down and break her hip (a common enough occurrence), it’s not? I’m not at all bothered by conflating the two.

  8. Roberts has become Kennedy.

    1. By sticking with the interpretation included in a decision authored by Scalia? That seems odd.

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