SCOTUS Watch: The Court Is Dribbling Out Decisions Slowly

The U.S. Supreme Court began the final month of its term with 24 cases yet to be decided. Court observers assumed, wrongly, that we were looking at “multiple decision Mondays” in June.

Instead, the Court has been dribbling out decisions slowly, one at a time, and adding extra opinion days on Thursdays in the process.

Last Thursday, the Court ruled inVan Buren v. United States, which centers on the federal Computer Fraud and Abuse Act (CFAA).

Supreme Court reporter Ian Milhiser has a good summary, The Supreme Court hands down very good news for pretty much everyone who uses a computer.

The Court’s 6-3 opinion in Van Buren, at the very least, prevents many prosecutions against individuals who commit minor transgressions online.

Justice Amy Coney Barrett’s majority opinion, which holds that Van Buren did not violate the federal law when he accessed a law enforcement database for an improper purpose, gives a narrow construction of the federal Computer Fraud and Abuse Act (CFAA), prevents most, but not all, the absurd results from a wide range of fairly ordinary activity that could become a crime if the CFAA was interpreted broadly — including “using a pseudonym on Facebook” or even sending a personal email from a work computer.

As Justice Barrett warns, the approach advocated by Justice Thomas’s dissent could potentially lead to the conclusion that “millions of otherwise law-abiding citizens are criminals.”

On Monday, the Court ruled in Sanchez v. Mayorkas. Justice Elena Kagan wrote the opinion for a unanimous court.

The question before the court was whether a grant of Temporary Protected Status (TPS) to the petitioner, Jose Santos Sanchez, given to him because of unsafe living conditions in El Salvador, enables him to obtain lawful permanent resident status despite his unlawful entry. The answer, according to the unanimous court, is no.

Supreme Court reporter Robert Barnes reports, Supreme Court unanimously backs limits on immigrants with temporary protected status seeking green cards:

The Supreme Court ruled unanimously Monday that immigrants who entered the country unlawfully and were granted a temporary stay for humanitarian reasons do not become eligible to seek permanent residency.

As many as 400,000 immigrants have been granted temporary protected status (TPS) in the United States, which means they are allowed to stay because of unsafe conditions or crises in their native countries.

Many of them would like lawful permanent resident status, usually referred to as a green card. But lower courts divided over whether those who entered the country illegally meet a requirement of the law that says they must have been “inspected and admitted or paroled into the United States.”

Jose Santos Sanchez, who entered the country unlawfully in 1997, contended that being granted TPS in 2001 satisfied that requirement for him.

But Justice Elena Kagan, writing for her unified colleagues, said the law was clear that it did not.

“Sanchez was not lawfully admitted, and his TPS does not alter that fact,” she wrote. “He therefore cannot become a permanent resident of this country.”

The case was inherited from the Trump administration, and separated the Biden administration from its usual allies calling for leniency in immigration matters.

Today the Court ruled in Borden v. United States, in what appears to be a 5-4 decision. Justice Kagan again writes the majority opinion, joined by Justices Breyer, Sotomayor, and Justice Gorsuch who joins her opinion in full. Justice Thomas did not join the opinion but concurred in the judgment. Justice Kavanaugh dissents, joined by Roberts, Alito and Barrett. This makes Justice Clarence Thomas the swing vote, in a 4-1-4 plurality decision in “rationale,” but resulting in a 5-4  judgment.

The issue before the Court was whether a criminal offense can count as a “violent felony” for purposes of the Armed Career Criminal Act’s mandatory minimum sentences if it only requires a mens rea (mental state) of recklessness. The Court today said no, a reckless offense does not qualify.

James Rosomer for SCOTUSblog explains, Court limits definition of “violent felony” in federal gun-possession penalty:

A fractured Supreme Court on Thursday narrowed the scope of a key phrase in the Armed Career Criminal Act, ruling that crimes involving recklessness do not count as “violent felonies” for the purpose of triggering a key sentencing enhancement.

Justice Elena Kagan announced the judgment of the court and wrote an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch. Justice Clarence Thomas did not join Kagan’s opinion but concurred in the result. That means that five justices rejected the federal government’s more expansive interpretation of the term “violent felony” and handed a victory to a criminal defendant who argued that the sentencing enhancement did not apply to his conduct.

The case, Borden v. United States, involved a provision of ACCA that imposes a 15-year minimum sentence on anyone convicted of being a felon in possession of a firearm if the person has three or more prior convictions for a “violent felony.” The term “violent felony” is defined, in relevant part, as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

[B]orden argued that only purposeful or knowing conduct can meet ACCA’s definition of “violent felony.” Mere recklessness, he said, does not qualify.

The U.S. Court of Appeals for the 6th Circuit disagreed with Borden and ruled that a crime involving recklessness counts as a “violent felony” that will trigger ACCA’s sentencing enhancement.

The Supreme Court reversed that decision on Thursday.

Kagan’s opinion for a four-justice plurality focused on the phrase “against the person of another” in ACCA’s definition. That language, she concluded, encompasses only purposeful or knowing crimes, not reckless ones.

[T]homas, in a solo concurrence, reluctantly agreed with the result. He agreed with Kagan that Borden’s Tennessee reckless-assault conviction does not count as a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” But his reasoning was different. Rather than rely on the phrase “against the person of another,” Thomas focused on the phrase “use of physical force.” That phrase, Thomas said, is limited to intentional acts designed to cause harm.

Thomas went on to say that, in his view, a separate provision of ACCA’s definition of “violent felony” should capture Borden’s reckless-assault conviction. That provision – the definition’s so-called residual clause – includes any felony that “involves conduct that presents a serious potential risk of physical injury to another.” But six years ago in Johnson v. United States, the Supreme Court ruled that the residual clause is so vague that it is unconstitutional and therefore cannot be enforced. In his concurrence, Thomas called on the court to overrule Johnson.

Kavanaugh’s 38-page dissent (longer than Kagan’s plurality opinion and Thomas’ concurrence combined) accuses Kagan of adopting a tortured reading of the phrase “against the person of another” to limit the reach of the statute. “The Court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence,” Kavanaugh wrote.

At the current pace the Court is issuing opinions, it is going to run well into July. I would anticipate that multiple decision days are coming soon.

The next decision day is on Monday. The “blockbuster” cases are still out there to be decided. Stay tuned.