“. . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward . . . “
Today’s argument in Lockhart v. United States turned on what Congress meant in a statute so poorly drafted Justice Alito gives it a “D”.
The petitioner in this case, Avondale Lockhart, was caught in a child pornography sting and pleaded guilty. At sentencing he faced a mandatory minimum ten-year enhancement because of a previous state conviction for attempted rape of his girlfriend. Lockhart argues that the sentencing enhancement only applies if the prior conviction was for an offense “. . . involving a minor or ward”, and that in the language quoted above “aggravated sexual abuse” and “sexual abuse” are qualified in the same as “abusive sexual conduct”.
The lower courts, of course, found otherwise.
It sounded like a lively and perplexing argument, and I hear form some of the reporters present that Lockhart may win to some degree.
As arguments were about to begin today Chief Justice Roberts reminded lawyers of Chief Justice Rehnquist’s admonition to not look up at the courtroom clock. The reason, not the same as Rehnquist’s, was that the two clocks in the courtroom were showing different times, neither of which was correct, and the minutes hands were moving in stops and starts. It seems that, just like last year, setting the Court’s clocks back an hour at the end of Daylight Saving is no easy matter.
The Court heard two interesting arguments, neither of which I’ll comment on since I’m about as good at explaining as the Court is at setting a clock.
The first argument, Foster v Chatman :
. . . and the second argument, Spokeo v. Robins :
Last week seems like a long time ago. I’ve been busy with some personal business – all good – and never got around to posting the sketches from last weeks arguments in Montgomery v. Louisiana and Hurst v. Florida.
The first argument concerned inmates who as juveniles were automatically sentenced to life without the possibility of parole. The Court three years ago, in Miller v. Alabama, ruled that although juveniles could receive a life sentence it couldn’t be automatic. The issue here is whether that applies retroactively.
The second argument looked at the role of juries in determining sentence in Florida death penalty cases.
A couple sketches from Tuesday’s Supreme Court argument in Ocasio v. U.S.. The case case involves members of the Baltimore police who received kickbacks for steering business to Majestic Auto Repair. Arriving on the scene of an auto accident the officer would encourage the driver of a damaged vehicle to have it towed to Majestic. In exchange officers would receive a $150. referral fee, later upped to $300.
One of the officers, Samuel Ocasio, who was convicted of conspiracy under the Hobbs Act for obtaining of property “from another, with his consent, . . . under color of official right”, appealed, arguing that the statute requires that the alleged conspirators agree among themselves to obtain property “from another”—that is, from someone outside the conspiracy. Since the bribe came from Majestic, and they were part of the conspiracy, there was no conspiracy, so the argument goes.
Not sure the Justices bought it
The Supreme Court began its new term on a beautiful fall morning much appreciated after several grey days of wind and rain.
The argument heard was a case in which a woman, Carol Sachs, who while traveling on a Eurail Pass had suffered a horrible injury while boarding a train in Austria, is seeking to sue the European railway in U.S. courts. Under the Foreign Sovereign Immunities Act such a lawsuit is barred except in commercial dealings. Because she bought her ticket in the United States, Sachs argues that her case falls under that exception.
SCOTUSblog’s analysis of the argument is here
Good vibes outside the Supreme Court this morning as the justices were about to hear over two hours of argument on gay marriage. The mood sobered up though as the first argument on the question of whether the constitution requires states to recognize same sex marriages got under way. The justices are evenly split with Kennedy the swing vote as usual, and Kennedy seemed troubled.
As soon as the first lawyer had finished and the Solicitor General was headed to the lectern a man with a good tan and white muttonchops stood and began to yell loudly. “The Bible teaches that you will burn in hell for eternity . . . homosexuality is an abomination,” he shouts as officers drag him from the courtroom.
A lot has and will be written about the argument, and on days like this I find it very hard to actually listen to the arguments – it’s a right-brain, left-brain thing, I guess – so I’ll just post my sketches and leave the comments to others.
“This is going to sound like a joke” Justice Alito said, “but, you know, it’s not.”
The not-joke was addressed to the lawyer for Abercrombie & Fitch who was defending the preppie fashion retailer’s decision not to hire an otherwise qualified teenager because she wore a hijab to her interview. Abercrombie says that her head covering was not in line with the company’s “classic East Coast collegiate style”. The EEOC sued the company on behalf of the teenager, Samantha Elauf, now 24, for not accommodating her religion.
Abercrombie’s defense: It couldn’t question her about her religion when she applied for a job, and she never informed them about her Muslim faith.
Which brings us back to Alito’s set-up: A Sikh wearing a turban, an Hasid wearing a shtreimel, a Muslim wearing a hijab, and a Catholic nun in habit go to the employment office and say, “we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement”.
SCOTUSblog’s Amy Howe reports on the argument here.
It was bitterly cold outside the Supreme Court this morning which may explain why there were fewer spectators than usual for today’s arguments.
These sketches are of the first argument, Henderson v. U.S., concerning a felon’s attempt to transfer ownership of a gun collection that as a result of his conviction he was no longer allowed to possess. Tony Henderson, who pleaded guilty to marijuana distribution, asked that the firearms, which had no part of his crime, be sold to a friend or transferred to his wife. The government refused, of course, pointing out that such a close connection to the recipient amounted to “constructive possession“.
Henderson’s lawyer, UVa law professor Daniel Ortiz, began his argument stating that his client was willing to have the guns sold by a federally dealer, though that was not his preference. That seemed fairly reasonable and straight forward to me – hey, even a non-lawyer like me might be able to follow this argument. But then they pulled out the scalpels and started dissecting the meaning of possession, forfeiture, due process, dominion and takings. “Well, it’s a kind of complicated transaction . . . , Your Honor”, responded Ortiz to a question from Justice Kagan.
For its part, the government was okay with letting a dealer sell the guns. But when it came to who picks the dealer the lawyer for the government faced some tough questions, especially from Scalia.
Back on the bench after their winter break the first case argued before the Justices was on the subject of consular nonreviewability.
There’s a long history of leaving the power to regulate immigration to the legislative and executive branches. The courts have generally declined to review how the State Department decides who comes into the country. But the door to review may have been opened a bit by a 1972 Supreme Court opinion, Kleindienst v. Mandel, where, while upholding the Attorney General’s right to refuse entry to a Belgian Marxist, the Court said the “executive exercises the power . . on the basis of a facially legitimate and bona fide reason”.
Today’s case, Kerry v. Fauzia Din, involves a U.S. citizen who sought an immigration visa for her Afghani husband. The embassy rejected the visa application citing “security and related grounds”, i.e. “terrorist activity”. No further details for the rejection or review of the decision were forthcoming, so Din filed suit in District Court. The lower court dismissed but the Ninth Circuit reversed and found that the government owed her “a facially legitimate reason”.
And no, Justice Sotomayor did not break her arm over winter break. The black cast she is sporting is from a surgical procedure and due to come off later this week. It did not slow her down as she jumped into this morning’s argument with the first question.
“Justice Scalia has the opinions in two cases,” the Chief Justice announced as Scalia’s chair sat empty, “he’s asked that I announce them.”
It’s not unusual for the a senior justice to announce the opinion of an absent justice. There are often one or more empty chairs on opinion days when no arguments are heard. But there were two cases to be argued today and unless a justice has recused themselves you can expect that they’ll be on the bench.
Scalia did eventually appear from the maroon curtains behind the bench just as the first argument was getting under way, a sex discrimination case that was really about the EEOC’s failure to use “conciliation” in enforcing Title VII. It turns out the justice was merely delayed in traffic.
You can read Mark Walsh’s account of Scalia’s tardy arrival here on SCOTUSblog.
Here are a couple sketches fro the argument in Mach Mining v. EEOC.
Also spotted in the courtroom today, and also not unusual, was Cecilia Marshall, wife of the late Justice Thurgood Marshall. She is a frequent visitor to the Court.