Before leaving for the summer, the justices cleared their docket of the merits cases from the 2023 term. Below are summaries of the Supreme Court’s most significant criminal decisions of the term.
In United States v. Rahimi, the Court rejected by an 8-1 vote a facial Second Amendment challenge to 18 U.S.C. § 922(g)(8), which criminally prohibits the possession of firearms by persons subject to domestic-violence restraining orders. This was the Court’s first Second Amendment case following its monumental 2022 decision in New York State Rifle & Pistol Association v. Bruen, in which the Court introduced a new text-history-and-tradition test for determining the constitutionality of firearms laws. Lower courts have struggled to apply that test, and Rahimi gave some additional guidance. The majority opinion authored by Chief Justice Roberts explained that the Bruen test was “not meant to suggest a law trapped in amber,” but instead to require courts to determine whether new laws regulating firearms are “relevantly similar to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.” Justice Thomas—the author of Bruen—dissented, favoring a stricter conception of the Bruen test that would essentially require any modern law regulating firearms to have a historical analogue. In the end, although Rahimi puts a gloss on the Bruen test that appears slightly more accommodating to firearm-regulation efforts, it remains a bit murky how that new iteration of the test should be applied to other laws. In the coming years, more confusion among the lower courts is expected, requiring additional elaboration by the Court.
In City of Grants Pass v. Johnson, the Court held that the Eighth Amendment does not prevent a city from enforcing against homeless individuals an anti-camping ordinance with criminal penalties. Writing for the six-justice majority, Justice Gorsuch began by reaffirming Robinson v. California (1962), which held that the Cruel and Unusual Punishment Clause of the Eighth Amendment requires that all criminal prohibitions be based on conduct, rather than on mere status. But that principle did not apply to the ordinance at issue, he reasoned, because it prohibits the act of camping on public property, rather than a person’s status. In reaching that conclusion, the majority rejected the argument that the city’s enforcement of the ordinance effectively criminalized status, insofar as it prohibited an act that homeless individuals could not help but undertake. In refusing to extend Robinson, Justice Gorsuch seemed to suggest that it probably should not have ever been decided on an Eighth Amendment basis, noting the fact that the parties in Robinson focused more on due process arguments and that the Eighth Amendment holding “was a view unprecedented in the history of the Court before 1962.” The majority did not take a position on whether the conduct requirement has an independent basis in the Due Process Clause. But it did note that the due process arguments in Robinson “may have made some sense.” Justice Sotomayor (joined by Justices Kagan and Jackson) dissented, taking the view that the anti-camping ordinances like the one in Grants Pass violate Robinson’s Eighth Amendment rule against status-based crimes because they effectively “criminalize being homeless.” For someone who is homeless, she reasoned, the act of sleeping outside is involuntary and a biological necessity. Justice Sotomayor also drew attention to the fact that the majority left open the possibility of due process protection in these circumstances, and noted herself that due process “may well place constitutional limits on anti-homelessness ordinances.” Thus, although Grants Pass resolved the Eighth Amendment issue, it seems to invite further litigation over anti-camping ordinances that is based on due process theories.
In Snyder v. United States, the Court narrowly construed a federal statute involving a white-collar crime, something it has repeatedly done over the last several terms. Snyder concerned the anti-bribery prohibition set forth in 18 U.S.C. § 666, which criminally prohibits state and local government officials from “corruptly” accepting “anything of value of any person, intending to be influenced or rewarded” for an official act. Snyder, the former mayor of Portage, Indiana, was prosecuted under the law on the theory that he had received an illegal gratuity—specifically, a $13,000 gift from a truck company that had recently been given contracts totaling more than $1 million for new trash trucks for the city. The Court rejected that theory, concluding that the statute covers only forward-looking bribes and not gratuity payments for past official acts. Writing for a six-justice majority, Justice Kavanaugh justified that narrow construction by appealing to the statute’s text, statutory history and context, concerns about expansive federal intrusion into the regulation of state politics, and the need to provide clear notice. Justice Gorsuch wrote a short concurring opinion, observing that, although the majority did not explicitly rely on “lenity,” that “ancient rule” is “what’s at work behind today’s decision, as it is in so many others.” That observation is supported by my own scholarly research, which has found that, over the last decade, the Court has never firmly relied on the rule of lenity to justify a narrow construction of a federal criminal statute, even though lenity very often appears to play a role in the litigation of these cases. See Joel S. Johnson, Ad Hoc Constructions of Penal Statutes, 100 Notre Dame L. Rev. (forthcoming 2024). Justice Jackson (joined by Justices Sotomayor and Kagan) dissented in Snyder, arguing that the plain language of the statute covered gratuities paid to officials after they had already performed an official act.
Finally, the Court weighed in on the prosecutions of those involved in the attacks on the U.S. Capitol on January 6, 2021, in Fischer v. United States. The case concerned the scope of Section 1512(c) of the Sarbanes-Oxley Act, which was enacted in the wake of the Enron scandal. Subsection (1) of the statute applies to any person who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.” Subsection (2) sets forth a residual clause, which extends the criminal prohibition to any person who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” The question in Fischer was whether the residual clause reached far enough to cover the alleged actions of those involved in the January 6 attack on the Capitol—trespassing, breaking windows, and assaulting police—that resulted in the delay of a joint session of Congress to certify the votes of the 2020 presidential election. The Court held that the residual clause did not cover that alleged conduct, narrowly construing it to cover only acts that affect “the availability or integrity” of “records, documents, objects . . . or other things” used in an official proceeding. Writing for a six-justice majority, Chief Justice Roberts justified the narrow reading by relying on the statute’s text, descriptive canons of interpretation, and statutory history and context. He also emphasized the “peculiar” consequences that would result from the government’s “unbounded” reading of the residual clause, which would have “criminaliz[ed] a broad swath of prosaic conduct, exposing activists”—including “peaceful protester[s]”—and lobbyists to the risk of “decades in prison.” And although he did not explicitly invoke lenity, Chief Justice Roberts did say that the Court has “traditionally exercised restraint in assessing the reach of a federal criminal statute” for reasons related to the separation of powers. That appeal to a tradition of interpretive restraint is consistent with language in other narrow-construction cases in recent terms; the Court appears to be using this rhetoric as a way to apply a lenity-like rationale without explicitly relying on the rule of lenity. Justice Barrett dissented (joined by Justices Sotomayor and Kagan), arguing that the plain text of the residual clause clearly encompassed the alleged conduct.
Glossip v. Oklahoma, No. 22-7466
Questions Presented:
(1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it; and (4) whether the Oklahoma Court of Criminal Appeals’ holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.
Garland v. VanDerStok, No. 23-852
Questions Presented:
(1) Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive,” 27 C.F.R. 478.11, is a “firearm” regulated by the Gun Control Act of 1968; and (2) whether a “partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver,” 27 C.F.R. 478.12(c), is a “frame or receiver” regulated by the Act.
Delligati v. United States, No. 23-825
Question Presented:
Whether attempted murder, in violation of the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. 1959(a)(5), qualifies as a crime of violence under 18 U.S.C. 924(c)(3).
Kousisis v. United States, No. 23-909
Questions Presented:
(1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, where inflicting economic harm on the victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.”
Hewitt v. United States, No. 23-1002
Duffey v. United States, No. 23-1150
Question Presented:
Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the act’s enactment, when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the Act’s enactment.
