The Volokh Conspiracy

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Justice Gorsuch DIGS In Kemp and Digs Out in Denezpi

On the current Court, Justice Gorsuch is the most unpredictable justice.


On the current Court, Justice Gorsuch is the most unpredictable justice. The other members of the Court are more-or-less predictable, but Justice Gorsuch continually surprises me with how he disposes of cases–not in the outcomes he reaches, but how he gets there. Two opinions from Monday illustrate this dynamic.

First, in Kemp v. United States, Justice Thomas wrote an opinion for 8 justices about the meaning of "mistake" in FRCP 60(b)(1). He observed that there is a "longstanding disagreement" on this issue in six circuits. Does Justice Gorsuch join this sound textualist opinion that resolves a circuit split, and narrows the scope of habeas relief? Nope. Gorsuch would have DIG'd the case so Rule 60(b)(1) can be amended pursuant to the Rules Enabling Act.

Respectfully, I would have dismissed the writ of certiorari as improvidently granted. Not only does this case fail to meet our usual standards for review. See Supreme Court Rule 10. At bottom, this dispute presents a policy question about the proper balance between finality and error correction. Should a district court be able to clean up a legal error through a collateral proceeding on any reasonable timeline within a year of judgment? Or do Rule 59(e) and the appellate process provide the necessary corrective measures in ordinary cases, with Rule 60(b)(6) as a last, narrow avenue to relief? Questions like these are best resolved not through a doubtful interpretive project focused on a pronoun dropped in 1946, but through the rulemaking process.There, policy interests on both sides can be accounted for and weighed in light of the "collective experience of bench and bar." Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 114 (2009). 

This outcome was not on my SCOTUS bingo card. And as best as I can tell, Gorsuch asked zero questions at oral arguments, so this analysis came out of the blue. Classic Gorsuch.

Kemp gave us restrained Gorsuch. But Denezpi v. United States involved double jeopardy, criminal justice, and an Indian tribe from Colorado (!). The stage was set for a reprise of McGirt, and Gorsuch would not disappoint. But how would he do his thing?

Footnote 2 of Justice Barrett's majority opinion may as well have included a face-palm emoji.

2The dissent, unwilling to accept Denezpi's framing of the case, asserts that his first conviction was for a federal offense because CFR court regulations assimilated the Tribe's assault and battery ordinance. Post, at 6–9 (opinion of GORSUCH, J.). The dissent is right that we do not address that point. Instead, we take the case as it comes to us: No party pressed the assimilation argument, here or below, and no lower court addressed it. Moreover, the answer to the question is not as obvious as the dissent claims. For example, while the dissent says that the relevant regulations "could not be plainer," post, at 6, they are much less clear than the Assimilative Crimes Act, which makes a person who violates a state law on a federal enclave situated in that State "guilty of a like offense and subject to a like punishment." 18 U. S. C. §13(a). Nor, despite the dissent's argument to the contrary, is it dispositive that the Assistant Secretary must approve a tribal ordinance before it can be enforced in CFR court— the Secretary of the Interior had to approve the Tribal Code at issue in Wheeler too. 435 U. S., at 327. In short, the assimilation question is complex, making it particularly imprudent to raise and resolve it sua sponte as the dissent proposes to do.

ACB added another face-palm emojis in Footnote 3:

3At times, the dissent suggests that the source of the trial court's power, rather than (or perhaps in addition to) the source of the prosecutor's power, matters in the dual-sovereignty analysis. See post, at 10–11. Again the dissent strays from Denezpi's argument, which has focused on the source of the prosecutor's authority. See, e.g., Tr. of Oral Arg. 9–11.

Truth be told, I found Gorsuch's dissent in Denezpi more persuasive than I thought it would be, even assuming that Gamble was correctly decided. The line between federal law and assimilated tribal law is fuzzy. Moreover, Part II–which Justices Sotomayor and Kagan did not join–teed up an important separation of powers issue for future cases.

By anyone's account, the Court of Indian Offenses is a curious regime. When instructing agency officials to create the Court of Indian Offenses, neither Secretary Teller nor anyone else pointed to any Act of Congress authorizing the project. On the contrary, from the beginning, federal officials recognized that these "'so-called courts'" rested on a "shaky legal foundation." W. Hagan, Indian Police andJudges: Experiments in Acculturation and Control 110(1966). Even more than that, one might wonder how an executive agency can claim the exclusive power to define, prosecute, and judge crimes—three distinct functions the Constitution normally reserves for three separate branches. See, e.g., United States v. Brown, 381 U. S. 437, 442–443 (1965). In these proceedings, however, Mr. Denezpi has not questioned whether the Court of Indian Offenses is statutorily authorized. Nor has he questioned whether the Constitution permits executive officials rather than a judge and jury to try him for crimes. Accordingly, those questions—long lingering and incredibly still unanswered—remain for another day. 

Coming soon to a cert petition near you. Still, advancing an argument that none of the parties argued is very problematic. And this engaged approach is so much at odds with the proposed DIG in Kemp.

Justice Gorsuch is like a box of chocolates. You never know what you are going to get.

Update: In George v. McDonough, Justice Barrett once again accuses Justice Gorsuch of raising arguments that none of the parties advanced:

2The principal dissent claims that this conclusion conflicts with the governing statute's present-tense statement that a VA decision " 'is subject' to later 'revision' " on collateral review. Post, at 5 (opinion ofGORSUCH, J.). But it would make little sense for Congress to pass a statute stating that a decision "was" subject to revision. The statute's use of the present tense refers to the time at which relief may be sought. It says nothing about the scope of the category of clear and unmistakable errors meriting relief, as fixed by the regulatory history. So we think there are good reasons why neither George nor any of his amici makes this argument.