The Volokh Conspiracy

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Justice Thomas Takes One For The Team in Borden v. U.S.

"This case forces us to choose between aggravating a past error and committing a new one. I must choose the former."


Borden v. United States presents yet another Armed Career Criminal Act (ACCA) case. Justice Kagan's controlling opinion summarizes the issue:

The Armed Career Criminal Act (ACCA), 18 U. S. C.§924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a "violent felony." The question here is whether a criminal offense can count as a "violent felony" if it requires only a mens rea of recklessness—a less culpable mental state than purpose or knowledge. We hold that a reckless offense cannot so qualify. 

For more than a decade, the Court has sharply divided about the ACCA. This case was no different. Justice Kagan announced the Court's judgment: the Sixth Circuit's judgment was reversed. But only three other Justices joined her opinion: Justices Breyer, Sotomayor, and Gorsuch. Justice Thomas only concurred in judgment. Justice Kavanaugh wrote a dissent, joined by Chief Justice Roberts and Justices Alito and Barrett.

What exactly did the Court hold? Justice Kagan and Kavanaugh quibble about how the votes lined up.

Justice Kavanaugh offers his rundown in Footnote 3.

3Just to explain today's lineup: Four Justices form the plurality. JUSTICE THOMAS concurs in the judgment. He agrees with the plurality's result but not its reasoning, and concludes that the phrase "use of physical force" alone excludes reckless offenses such as reckless assault or reckless homicide. The Court reached a different conclusion in interpreting a similarly worded statute in Voisine v. United States, 579 U. S. 686 (2016). But JUSTICE THOMAS indicates that he will not follow that precedent in this case. (Importantly, unlike the plurality, JUSTICE THOMAS does not rely on the phrase "against the person of another.") 

JUSTICE THOMAS further explains that reckless offenses were covered by ACCA under the residual clause. But that clause was declared unconstitutional in Johnson v. United States, 576 U. S. 591 (2015). Although JUSTICE THOMAS disagrees with Johnson, he indicates that he will today follow the Court's Johnson precedent, albeit not the Voisine precedent. 

So we find ourselves in an unusual situation. In Voisine, seven Justices agreed that the phrase "use of physical force" in a similarly worded statute covers reckless offenses. And eight Justices today accept that the phrase "use of physical force" covers reckless offenses. Moreover, five Justices today agree that ACCA's text, properly interpreted, would cover reckless offenses. And only four Justices conclude that the phrase "against the person of another" addresses mens rea and excludes reckless offenses. Yet despite all of that, Borden prevails, and reckless offenses are now excluded from ACCA's scope. That outcome is anomalous. 

This footnote reminds me of Kavanaugh's June Medical rundown.

Justice Kagan counted to five differently. And she chides Kavanaugh for whining about the "unfair" divide:

The dissent also goes through a complicated counting exercise about how different Justices have divided in this and two other cases, apparently to show how unfair it is that the dissent's view has not prevailed here. See post, at 4, n. 3. But there is nothing particularly unusual about today's line-up. Four Justices think that the "use" phrase, as modified by the "against" phrase, in ACCA's elements clause excludes reckless conduct. One Justice thinks, consistent with his previously stated view, that the "use" phrase alone accomplishes that result. See post, at 2 (THOMAS, J., concurring in judgment). And that makes five to answer the question presented. Q: Does the elements clause exclude reckless conduct? A: Yes, it does.

The real losers here are the lower courts. How will they follow this decision? Indeed, Justice Thomas cast his vote to give the lower courts a lifeline. He wrote:

Yet I reluctantly conclude that I must accept Johnson in this case because to do otherwise would create further confusion and division about whether state laws prohibiting reckless assault satisfy the elements clause.3

3 Voting to affirm petitioner's sentence here would lead to a 5 to 4 judgment that petitioner's sentence is correct even though five Justices conclude that Tennessee reckless aggravated assault does not satisfy the elements clause. That kind of fractured reasoning would be difficult for lower courts to apply.

Here, Justice Thomas took one for the team. This statement reminds me of Justice Souter's concurrence in Hamdi v. Rumsfield. He and Justice Ginsburg joined the plurality to give it effect:

Since this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight members of the Court rejecting the Government's position calls for me to join with the plurality in ordering remand on terms closest to those I would impose.

Here, I'd like to highlight Part II of Justice Thomas's Borden concurrence. He raised two foundational points about federal jurisprudence.

First, he reiterates a truth that judges, attorneys, and professors refuse to accept: courts cannot "nullify" laws. Here, Thomas favorably cites Jonathan Mitchell's Writ-of-Erasure Fallacy.

First, to "pronounce that the statute is unconstitutional in all applications . . . seems to me no more than an advisory opinion—which a federal court should never issue at all." Chicago v. Morales, 527 U. S. 41, 77 (1999) (Scalia, J., dissenting). Courts have no authority to "'strik[e] down'" statutory text. See United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring) (slip op., at 6); see also Mitchell, The Writ-of-Erasure Fallacy, 104 Va.  L. Rev. 933, 936 (2018). Nor may courts resolve "generalquestions of legality" by "provid[ing] relief beyond the parties to the case." Trump v. Hawaii, 585 U. S. ___, ___, ___ (2018) (THOMAS, J., concurring) (slip op., at 6, 8). A court may only "'adjudge the legal rights of litigants in actual controversies.'" United States v. Raines, 362 U. S. 17, 21 (1960). 

Second, the Court cannot halt the enforcement of a law where that enforcement would be lawful.

These errors show that this Court in Johnson not only misapplied the Due Process Clause but also exercised the legislative role. Legislatures alone have authority "to prescribe general rules for the government of society." Fletcher v. Peck, 6 Cranch 87, 136 (1810). Courts, by contrast, have authority to provide only those "remed[ies that are] tailored to redress the plaintiff 's particular injury." Gill v. Whit-ford, 585 U. S. ___, ___ (2018) (slip op., at 21). Simply put, where enforcement of a law would conflict with the Constitution, a court has authority under the Supremacy Clause to enjoin enforcement, but a court cannot, consistent with separation of powers, enjoin enforcement of a statute where enforcement would be lawful. Johnson, however, conducted the "quintessentially legislative work" of altering the legal rules that would apply in cases where the residual clause could lawfully be enforced. See Planned Parenthood of Northern New Eng., 546 U. S., at 329–330. 

This statement reflects Thomas's broader view that modern overbreadth doctrine is invalid.

Justice Thomas is playing in his own league. More judges should internalize this way of understanding the judicial role. I wish Justice Gorsuch had joined this opinion. Instead, once again, he voted wtih the progressives on a textualist question. Bostock will not be an outlier.

Finally, Justice Kagan offers a favorable citation to Heller. And she calls Justice Scalia one of the Court's "great wordsmiths."

As in those examples, ACCA's"against" phrase modifies volitional conduct (i.e., the use of force). So that phrase, too, refers to the conduct's conscious object. Indeed, the Court has made a similar point before, in an opinion by one of its great wordsmiths. When citizens "bear [a]rms against" some entity, Justice Scalia wrote, what follows the word "against" is "the target of the hostilities." District of Columbia v. Heller, 554 U. S. 570, 586 (2008) (internal quotation marks omitted). That is just as true when someone, as in the elements clause, actively employs physical force.

I am grateful for the Heller cite. Very few majority opinions have cited that landmark case. Alas, Scalia's argument about "bear arms against" is one of the weakest parts of his opinion. He made up that argument. It did not appear in any of the briefs. And my research suggests his "bear arms against" argument was incorrect. But a great wordsmith, he was.