Chief Justice Roberts’ Unexpected Interest in Prosecutorial Intimidation

This post examines a potential trend based on, admittedly, very little data.  However, evidence is emerging that Chief Justice Roberts may be the single member of the Court most concerned about a specific phenomenon:  prosecutors using the wide ranges of potential sentences for federal crimes to coerce plea bargains from potentially innocent defendants.  Needless to say, the Chief’s general judicial philosophy doesn’t make him generally a bleeding-heart, nor is he pro-defendant.  By my unofficial count, he’s the third most pro-prosecution member of the current Court, after Justices Alito and Kennedy (and potentially followed by Breyer).   But for some reason, this one issue seems to bother him.

This trend first emerged, at least to me, in the oral arguments in Yates v. U.S.  I’ve discussed it here before, but to recap, the government prosecuted a fisherman under the anti-shredding provision of Sarbanes-Oxley for destroying undersized fish.  The case was primarily controversial because the maximum sentence was twenty years.  Most of the Court focused on the sheer injustice of the potential sentence, in a vacuum.  See Yates, No. 13-7451, at *18 (Ginsburg, J., plurality opinion) (noting that Section 1519 describes “not a misdemeanor, but a felony punishable by up to 20 years in prison); id., at *18-19 (Kagan, J., dissenting) (explicitly stating that majority reached incorrect result because of discomfort with length of potential sentence).  Importantly, neither side of this exchange was focused on the leverage that the twenty years provided—both sides engaged in a much simpler analysis, noting that twenty years for shredding fish is just plain wrong.

That wasn’t the Chief’s concern.  At oral arguments, he zeroed in on a much scarier proposition:  that federal prosecutors would use Section 1519’s breadth and wide sentencing range to coerce plea bargains.

But the point is that you could [charge for and secure a 20 year sentence], and the point is that once you can, every time you get somebody who is throwing fish overboard, you can go to him and say:  Look, if we prosecute you you’re facing 20 years, so why don’t you plead to a year, or something like that.  It’s an extraordinary leverage that the broadest interpretation  of this statute would give Federal prosecutors.

Yates, Tr. of Oral Arg., at 31.

Considering that roughly 95% of federal prosecutions end in a plea bargain, plea dynamics are pretty gosh-darned important.  See Plea and Charge Bargaining: Research Summary, Bureau of Justice Assistance, available at (last accessed Apr. 25, 2015) (providing 2003 statistics).  But incredibly, the Chief was really the only Justice in the Yates argument focused in on it.

A one-time question can be a one-off, and I didn’t think that this was a particular concern of the Chief’s until this week, when the oral arguments in U.S. v. Johnson came out.  His concern came back out, and in full force.  Johnson is an interesting case.  It addresses the Residual Clause of the Armed Career Criminal Act, which is essentially the federal judiciary’s version of 1969 Vietnam.  It lays out significantly harsher penalties for offenders who have certain qualifying predicate offenses, but those offenses  have to be “violent.”  But “violence” is largely defined by state law, and state predicate offenses count.  So, the federal courts have been drawn into a morass of parsing state law, trying to figure out what counts as a violent predicate crime.  The Supreme Court finally threw up its hands this term, ordered reargument in Johnson, and said “why shouldn’t we just throw the Residual Clause out?”

Those rearguments happened Monday.  During an exchange on what forms of extortion would constitute a precursor crime under the Residual Clause, the deputy Solicitor noted that the Supreme Court would likely only support a limited definition.  The Chief fired back:

No.  But the problem is ­­the problem is not what the government argues when it gets into court.  The problem is what the prosecutor threatens when he’s entered into plea bargain negotiations.  This is the point that Justice Ginsburg touched on.  You are putting the defense counsel in a  position where they have to interpret the vagueness in making the decision when – whether they want to plead to five years or risk the mandatory minimum of 15. And your guidelines say a lot, but I thought one of the things your guidelines say is that you should prosecute the maximum extent that you can, right?  Isn’t it you should charge the maximum if you ­­ if you charge and then the prosecutors go in and say, look, I could charge you this much and ­­ or I could ­ . . . I mean, I could add this charge to what I’ve got and then you’d face 15 years.  And defense counsel said, well, all right.  Let me see if we’re guilty of that.  And he’s going to read that and have no idea whether they’re covered by it or not.

Johnson, Tr. of Oral Arg., at 42.

The Chief is worried about this.  And the weird thing is, a look at his biography doesn’t immediately reveal why.  He clerked for Judge Friendly (CA2) and Justice Rehnquist, no friends of criminal defendants.  You have to figure that his time in private practice at Hogan Hartson probably didn’t do it, unless there’s a devastating pro bono loss that he hasn’t talked about publicly.  I doubt it was his service as a judge on the D.C. Circuit—that Circuit faces all kinds of cases, but it’s primarily concerned with administrative workability.  His time in the White House Counsel’s office gets a little warmer, but the memos that the Bush administration released when he was nominated don’t show him working on criminal justice issues; rather, he seemed focused on more traditional separation of powers issues.  See, e.g., In Reagan’s White House, a Clever, Sometimes Cocky, John Roberts, N.Y. Times, available at (last accessed Apr. 25, 2015).

That leaves his time as Principal Deputy Solicitor General in the George H.W. Bush White House.  And the Solicitor’s office clearly doesn’t intrinsically sour you on federal prosecutors:  Kagan voted the other way in Yates, and she served as the current president’s S.G. (an admittedly weak data point, but the best we can do under the circumstances).  My gut feeling is that the Chief saw a legitimately horrible, coercive plea deal happen sometime between 1989 and 1993, and it’s stuck with him.  I don’t know if it was a pattern, or one case.  But the Chief seems like a good man, and he seems like someone who could be haunted by an outcome he was forced to defend but couldn’t internally justify.

Going forward, this probably only matters in a very narrow band of cases, especially considering the rest of the Court seems to likewise be clamping down on federal prosecutors.  Perhaps the Chief might eventually ally with Justice Breyer and the pro-sentencing-guidelines crowd, providing a fifth vote to limit Apprendi (making sentencing guidelines optional).  Regardless, it’s interesting.  Perhaps leverage is just a research interest of the Chief, but I like the idea of the nation’s highest judicial officer bearing some psychological burden from the times that the system has failed its citizens.  I hope he continues to care as much going forward.

Chief Justice Roberts’ Unexpected Interest in Prosecutorial Intimidation

Anticipating John Bursch: The Doogie Howser of the Far Legal Right

Most of the attention focused on the oral advocates in Obergefell v. Hodges, the same-sex compendium hitting the Court’s oral argument docket later this month, has focused on who will take the oral argument for the Petitioners.  It’s a historic case, and everyone reading the tea leaves says that same-sex couples in all 50 states will be able to marry sometime around June 29th.  Roberta Kaplan of Paul Weiss won Windsor v. U.S., and she’s therefore arguably the temporary acolyte for “gay-rights Thurgood Marshall.”  But let’s be real—whoever scores the big hit in Obergefell is going to be a legend.  This one’s different from the victories that Justice Ginsburg won for women as a litigator in cases like Frontiero—she was so brilliant that nobody even knew what she was going for at first.  Not here—this is the high noon showdown that people gather to watch at 11:15am.  No wonder everyone fought to death on who would argue for Petitioners and eventually settled on Mary Bonauto, a legendary gay-rights litigator who is an easy consensus choice.  If (when) the Petitioners ring the bell in Obergefell, she’ll have a lot of morning talk shows to visit.

Which leaves the less obvious question—who do you call to argue the other side?  If there are so many social, political, legal, and academy pressures to argue the petitioner side of a case, then who would step up to get battered by at least five justices?

The answer, scarily, is “easily the most talented lawyer in the country who hasn’t yet had his forty-fifth birthday.”  John Bursch is arguing the case for the Respondents (the states of Michigan, Ohio, Indiana, and Kentucky), and he’s the scariest lawyer that most people have never heard of.  From the sneakily-excellent Minnesota Law School, Bursch clerked for the Eighth Circuit and quickly pushed himself into the upper echelon of Midwestern appellate law.  He was appointed as Michigan’s Solicitor General, which coincided with a several-year span where Michigan spawned multiple deeply-important constitutional and federal statutory challenges.  As a thirty-something, he suddenly found himself as a prime player in front of the Supreme Court.

Bursch’s heyday—up until late April—came in Schuette v. BAMN, which I’ve discussed here before.  The petitioners’ challenge asked whether Michigan voters could permissibly pass a ballot initiative ruling out race as a factor in college admissions.  This was an affirmative action debate, but procedurally turned on its head.  Bursch briefed and argued the case brilliantly.  He came out firing in his brief, offering a gorgeously simplistic framing:  “It is curious to say that a law that bars a state from discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race and sex.”  Br. for Petitioner at 4.  The rest of the brief is luminous, and the oral argument was every bit its equal—Bursch walked in with multiple routes to a win, abandoned and pressed them as called for, and generally gave himself every chance to secure a victory.  It’s the single best oral argument I’ve heard (though that comes with a caveat—ranking oral arguments without audiotapes of Robert Jackson is like ranking NBA players without full video footage of Bill Russell).  The point is, Bursch is the single advocate in the country that scares me in Obergefell—even Clement showed that he couldn’t throw bones with Justice Kagan in the Windsor orals, when Kagan thoroughly stumped him with a question about the House’s stated intent to express displeasure with homosexuality in passing D.O.M.A.

Bursch’s tack in the same-sex marriage cases will be interesting.  In essence, he’s playing with house money—Mike Huckabee and Rick Santorum may be the only Americans who expect the Sixth Circuit states to prevail.  There’s a certain freedom that comes from arguing a thoroughly lost cause.  But Bursch is going to exploit the few cards he has left in his hand.  He was the counsel of record when Utah challenged the 10th Circuit’s overruling of Utah’s same-sex marriage ban, and filed a cert petition trying to bring that case before the Supreme Court.  Bursch plucked the federalism string like John Calhoun—he was literally three sentences into his cert petition before quoting Justice Kennedy’s Schuette opinion and its exhortation that state citizens are entitled to “act through a lawful electoral process.”  Herbert v. Kitchen, Cert. Pet. at 3.  But he made some curious choices too—the cert petition hammers Washington v. Glucksburg, an assisted suicide case that, while speaking to state sovereignty, doesn’t carry the hard-hitting emotional valence you’d want when trying to gut-punch a swing vote.  See id. at 3-4.  At its core, though, the petition fundamentally keyed off of Justice Alito’s brutal Windsor dissent, which effectively re-framed the marriage equality debate as a philosophical squabble between equal and competing intellectual camps.

I think Bursch is probably already the second-best lawyer in the country, and I think he’s learned since the Kitchen petition.  I think at oral arguments, he retains the twin cores of his argument—federalism, and the Alito Windsor argument.  God willing he drops the Glucksburg line, Justice Kennedy is not going to be scouring prior opinions when deciding a case of this magnitude.  Compare Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992), with Lawrence v. Texas, 539 U.S. 558, 586 (2003) (excoriating Justice Kennedy’s tenuous relationship with stare decisis).  But I really think he shows up to play.  It’s my second straight West Wing reference, but—if we get John Bursch, the scared Midwesterner defending criminally unpopular statutes, then this may be a blowout.  But if we get John Bursch, the Solicitor General of Michgan and the lead-off hitter for the next Republican president’s SCOTUS short-list, in the most important case of his life—it may be a sight to see.  I think the Obergefell petitioners probably deserve to win, but I want to see a barnburner in the meantime.  Root for Bursch to show up, and getcha popcorn ready.

Anticipating John Bursch: The Doogie Howser of the Far Legal Right