July 15, 2020 Cert Alert

Supreme Court Cases of Interest

Anthony J. Franze

Like the rest of the world, the Supreme Court had to change its way of life to combat COVID-19. The justices shuttered One First Street, and for the first time since the Spanish flu epidemic, they postponed several oral arguments. But the wheels of justice must spin on. In a historic move, the Court held its first-ever telephonic arguments. And even while social distancing, the justices managed to issue several decisions.

As always, below is a list of recent criminal law–related opinions, cases awaiting decision, and cases accepted for review. Also, two guest experts—SCOTUS’s most famous criminal law advocate, Michael Dreeben, and renown criminal law scholar Professor Dan Epps—discuss a trio of decisions from Kansas that reflect some broader insights about the Supreme Court’s criminal law jurisprudence.

We’re Not in Kansas Anymore

The State of Kansas had three criminal cases in the high court in the 2019–20 term: Kahler v. Kansas, No. 18-6135; Kansas v. Garcia, No. 17-834; Kansas v. Glover, No. 18-556.

Each was quite different, but together they reflect some broader themes about the Court’s approach to criminal law and procedure.

In Kahler and Garcia, the Court pushed back on expansive efforts to use federal law to limit state prosecutions. Michael Dreeben, who co-chairs O’Melveny’s white-collar practice and has argued more than 100 cases in the Supreme Court, said that these decisions reflect a recurring federalism strain that runs through the high court’s criminal law jurisprudence, though “the two holdings come from very different impulses and have starkly different implications.”

The Court in Kahler held that Kansas’s restriction on the insanity defense did not violate due process. Kansas law rejects the common rule that a defendant may escape conviction by showing that he did not perceive that his actions were wrong at the time of the crime, and instead only permits insanity evidence to negate the specific intent required for conviction. Justice Kagan’s majority opinion held that the limitation was permissible, reasoning that the so-called moral-incapacity test for insanity was not sufficiently rooted in the history of Anglo-American criminal law to be a required component of due process. Dreeben said, “the Court’s hands-off view of the insanity defense was no surprise. In fact, for decades, the Court has refused to make constitutional judgments about how philosophical, moral, practical, and medical judgments about insanity translate into constitutional rules about criminal culpability.” More broadly, he said, the case illustrates that “it is very hard to get the Court to adopt substantive constitutional baselines for state criminal law.” Professor Epps agreed: “The decision is one more example in a long line of cases where the Court has largely declined to impose constitutional limits on the substance of state criminal law, even while the Court has been much more willing to regulate state criminal procedure.”

In Kansas v. Garcia, the Court held that state laws used to prosecute noncitizens who used stolen social security numbers on their employment forms were not preempted by the Immigration Reform and Control Act. “The decision gives States leeway to enforce a harsh immigration employment policy, even when the federal government does not,” Dreeben said. “That is a big step back from the Court’s 2012 decision in Arizona v. United States, which held that a State’s prosecution of aliens for working illegally was preempted to protect the dominant federal role.” He added that the majority in this 5-4 decision drew some fine lines to avoid finding preemption, “even though the factual reality is that Kansas’s prosecution of an alien’s false statements in a W2 form provides a back-door way for the State to bring criminal charges against aliens who lie in their employment applications.”

In the third case in the Kansas trilogy—Kansas v. Glover—the question was not state criminal substantive law, but whether police violate the Fourth Amendment when they pull over a driver based on the fact that the vehicle’s registered owner had a revoked driver’s license. In Glover, the court held that under those circumstances, the police officer’s stop was reasonable “when the officer lacks information negating an inference that the owner is the driver of the vehicle.”

Professor Epps, a leading authority on criminal law and former Supreme Court law clerk, thinks the justices’ varying rationales could create division in the lower courts. Epps noted that Justice Kagan’s concurring opinion in Glover stressed an additional fact about the circumstances of the case: that the officer knew that the vehicle’s owner “had had his license revoked under Kansas law. . . . And Kansas almost never revokes a license except for serious or repeated driving offenses.” Justice Kagan reasoned that this supported an inference that the owner was a person likely to continue driving despite the license revocation. “Justice Thomas’s majority opinion did not clearly endorse Justice Kagan’s narrow reading of the holding, but it did not clearly reject it either,” Epps said, and, thus, “it’s likely that some lower courts will read the majority more broadly, and apply its reasoning to cases involving license suspensions, while others will agree with Justice Kagan that there is less reason for an officer to assume that the registered owner is likely to be the driver.”

Remaining Decisions

Since the Spring edition of “Cert Alert,” the Court also has issued the following decisions:

Bivens—Right to Assert Damages Claim/Cross-Border Shooting

Hernandez v. Mesa, No. 17-1678
Decided: February 25, 2020
Judgment: Affirmed 5-4
Holding: Bivens does not extend to claims based on a cross-border shooting.

Sentencing—Capital Cases

McKinney v. Arizona, No. 18-1109
Decided: February 25, 2020
Judgment: Affirmed 5-4
Holding: Appellate courts can reweigh aggravating and mitigating evidence on habeas review.

Armed Career Criminal Act

Shular v. United States, No. 18-6662
Decided: February 26, 2020
Judgment: Affirmed 9-0
Holding: Section 924(e)(2)(A)(ii)’s “serious drug offense” definition requires only that the state offense involve the conduct specified in the statute; it does not require that the state offense match certain generic offenses.


Sentencing—Preservation for Appeal

Holguin-Hernandez v. United States, No. 18-7739
Decided: February 26, 2020
Judgment: Vacated & Remanded 9-0
Holding: Petitioner’s district-court argument for a specific sentence (nothing or less than 12 months) preserved his claim on appeal that the sentence imposed was unreasonably long.

Sixth Amendment—Unanimous Verdict Requirement

Ramos v. Louisiana, No. 18-5924
Decided: April 20, 2020
Judgment: Reversed 6-3
Holding: A unanimous verdict is required to convict a defendant of a serious offense.

“Bridgegate”—Wire and Federal Program Fraud

Kelly v. United States, No. 18-1059
Decided: May 7, 2020
Judgment: Reversed 9-0
Holding: A scheme to alter a regulatory choice as political retribution is not one to take the government’s money or property in violation of federal wire fraud and program fraud statutes.

Appellate Procedure

United States v. Sineneng-Smith, No. 19-67
Decided May 7, 2020
Judgment: Vacated & Remanded 9-0
Holding: Under the “principle of party presentation,” the Court declined to address the merits of whether the statute at issue was overbroad because only the appellate court, not the parties, raised the issue.
[Disclosure: Arnold & Porter was counsel for amicus in this case supporting respondent.]

Cases Awaiting Decision

The following are the pending criminal law–related cases awaiting decision at the time this column went into production. They are listed in the order they were argued, with their questions presented.


Banister v. Davis, No. 18-6943
Argued: December 4, 2019
Questions Presented:

Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby.

Jurisdiction—Crimes Committed in Indian Country

McGirt v. Oklahoma, No. 18-9526
Telephonic Argument: May 11, 2020
Question Presented:

Whether Oklahoma Courts can continue to unlawfully exercise, under state law, criminal jurisdiction as “justiciable matter” in Indian Country over Indians accused of major crimes enumerated under the Indian Major Crimes Act—which are under exclusive federal jurisdiction.

[Disclosure: Arnold & Porter is counsel for the State of Oklahoma in McGirt.]

Cases Set for Next Term

The 2020–21 term already is chock-full of criminal law–related cases, including three recent cert grants and cases carried over from the 2019–20 term because of COVID-19:

Military Justice—Statute of Limitations

United States v. Briggs, No. 19-108 and United States v. Collins, No. 19-184
Question Presented:

Whether the Court of Appeals for the Armed Forces erred in concluding—contrary to its own longstanding precedent—that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

Immigration—Removal Proceedings

Pereida v. Barr, No. 19-438
Question Presented:

Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.

Fourth Amendment—Search and Seizure

Torres v. Madrid, No. 19-292
Question Presented:

Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the Eighth, Ninth, and Eleventh Circuits and the New Mexico Supreme Court hold, or whether the physical force must be successful in detaining a suspect to constitute a “seizure,” as the Tenth Circuit and the D.C. Court of Appeals hold?


Jones v. Mississippi, No. 18-1259
Question Presented:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

Crimes and Offenses—Armed Career Criminal Act

Borden v. United States, No. 19-5410
Question Presented:

Whether the “use of force” clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), encompasses crimes with a mens rea of mere recklessness?

Computer Fraud and Abuse Act

Van Buren v. United States, No. 19-783
Question Presented:

Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

Retroactive Effect of Unanimous Jury Ruling

Edwards v. Vannoy, No. 19-5807
Question Presented:

Whether the Supreme Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020) applies retroactively to cases on federal collateral review.

The Court’s 2020–21 term opens on the first Monday in October 2020. Here’s to a return to business as usual at the marble palace—and everywhere else. Stay well.


Anthony J. Franze


Anthony J. Franze is a lawyer in the Appellate & Supreme Court practice at Arnold & Porter, a regular commentator on the high court and appellate law, and a critically acclaimed novelist.