Shifting Overton Inputs

Last week, I posted about the extraordinary facts section in Kansas v. Carr, No. 14-449.  Carr, a death penalty case, started with a five-page recitation of the heinous details of a beyond-brutal crime.  That facts section accomplished several objectives (as previously explored), but it undoubtedly injected an analytical element into Carr that is glossed over in many other capital cases–the moral culpability of the murderer.  Of course, that culpability is always relevant at the mitigation stage, but it previously has not been an important part of Eighth Amendment analysis when the Court determines if a procedural aspect of a capital case passed muster.

I believe that this invocation of the murderer’s moral culpability represents an attempt to inject a new moral/legal input into the capital calculus.  And these attempts are more common in the law then are commonly realized.  They are, I believe, an inputs-based parallel to an outputs-based political science theory:  the Overton Window.  The Overton Window theory posits that there is a range (window) of acceptable public policy outcomes, and that public policy debate occurs within that window.  Policy outcomes within the window range from unthinkable, to radical, to acceptable, all the way to popular or desired policy outcomes.  See, e.g.Wikipediasee also Biography of Joseph Overton, Mackinac Center.  Ideas are only acceptable (and therefore actionable) if they are within the current Overton Window.  But the Window can shift.  Change agents who float initial radical or beyond-radical ideas can set an anchor point that drags the window right or left.  For a recent example, see National Review, Trump Shifting the Window.

Justice Thomas is the Supreme Court’s top provocateur in terms of moving the Supreme Court’s substantive Overton Window.  His radical ideas frequently become the Court’s policy years later, as the ideas are normalized and the Window shifts right.  Compare Printz v. U.S., 521 U.S. 898, 936 (1997) (Thomas, J., concurring) (arguing alone that Second Amendment confers an individual right), with Heller v. District of Columbia, 554 U.S. 570 (2008) (Court finally agrees).

Like Justice Thomas’s substantive anchoring, most Overton Window analysis in the public policy realm focuses on public policy outputs.  “Should we have a socialized healthcare system,” “should abortion remain legal,” and “should there be a national right to same-sex marriage” are questions of policy outputs.  People spend decades moving the Overton Window as to these substantive outcomes.  30 years ago, same sex marriage was unthinkable.  15 years ago, it was radical and illegal.  Now, opposing same-sex marriage falls somewhere between an extreme faux pas and a hate crime.  The Window shifted on the policy itself.

But lawyers have another option besides moving the substantive Overton Windows–they can shift the acceptable inputs that govern where the Window ultimately falls.  That is what Justice Scalia was attempting to do (and has been joined before before by Justices Thomas and Alito) in the Kansas v. Carr facts.  I am generally against capital punishment on moral grounds; Kansas v. Carr made me rethink that position.  Scalia, by shifting the acceptable inputs (i.e., factoring in the moral culpability inherent in the Carr brothers’ brutality) changed where the substantive Window ultimately ends up.

Or take Scalia’s efforts to move inputs on textualism and originalism.  Many commentators noted that, in the wake of District of Columbia v. Heller, both the Court and the dissent employed deeply originalist analyses.  These originalist sources–Blackstone, period-specific text, etc–should be likewise viewed as Overton Inputs.  Scalia, in 30 years on the Court, has moved these originalist inputs from marginal, to persuasive, to required/normative.

The Roberts Court has quietly moved other Overton Inputs.  For example, in the preliminary injunction setting, the Court has emphasized the importance of the first factor–likelihood of success on the merits–at the expense of other factors, like public policy.  See Winter v. Natural Resource Defense Council, 555 U.S. 7, 20-21 (2008); see also id. at 51 (Ginsburg, J., dissenting) (noting prior existence of “sliding scale” for preliminary injunction evaluation).  This factor favors those who already have an advantage in law, which are also the groups the Roberts Court favors–corporate defendants and the military, to name two.  And it critically wounds groups that the Roberts Court disfavors, like environmentalists and plaintiffs.  The Roberts Court has influenced how the substantive outcomes will settle out by altering which inputs are required, and by making a normative case for those inputs.  It is no coincidence, for example, that Winter involved a challenge to a naval training exercise that, if upheld, could jeopardize the nation’s anti-submarine capabilities.  The Roberts Court picked a prime case to normalize a new input, and thus ensured a series of outputs that fall more in line with conservative orthodoxy.

Lawyers know how to influence the factors that go into an ultimate decision.  For decades, they have attempted to pick the proper “vehicles” to present cases to courts, argued for certain modes of interpretation, and sought to humanize their plaintiffs.  These efforts should be viewed in a more unified sense–they are all ways of influencing Overton Inputs, and they are specifically designed to make normative certain factors that influence a decision and ultimately ensure that the decision will land in a place the litigant wants.  The conservatives of the Rehnquist and Roberts Court have mastered the art of manipulating Overton Inputs, and that mastery helps explain the rightward trajectory of the law over the past 30 years.

Shifting Overton Inputs

Justice Scalia’s All-In Signaling Gamble

Justice Scalia just went all-in on the death penalty.

Scalia has been worried about the direction of the Court’s death penalty jurisprudence for years.  The Court’s four Democratic appointees either favor striking it or limiting it into effective nonexistence, and while Justice Kennedy is very conservative in other areas, he has provided a backbreaking vote against the death penalty in multiple settings.  See, e.g.Roper v. Simmons, 543 U.S. 551 (2005) (no death penalty for crimes committed under age 18); Kennedy v. Louisiana, 554 U.S. 407 (2007) (no death penalty for sexual assault of a minor); Hall v. Florida, 134 S. Ct. 1986 (2013) (Florida cannot impose death penalty on those with IQ under 70 and therefore can execute very few, if any, native Floridians).  Justice Scalia even publicly admitted in interviews this summer that he was worried five votes existed for abolition of capital punishment.  See, e.g., ABA Journal Article.  In this context, it also would not be surprising if he feared an erosion of capital punishment in the lower courts, spurred by Justice Kennedy’s obvious fence-sitting.  He lost the war on same-sex marriage through a thousand district court cuts, and he could well lose the capital punishment war the same way.

But Scalia delivered a moderately strong signal to those lower courts to stay the jurisprudential course in Kansas v. Carr, No. 14-449.  Kansas v. Carr legally addresses whether a trial court must instruct a jury that it need not find mitigating factors beyond a reasonable doubt.  Id., at *1-2.  But factually, it addresses a brutal and horrific crime spree by brothers Reginald and Jonathan Carr, who raped and murdered an innocent family in beyond-animal fashion.  Justice Scalia described their crime spree in the most vivid, gut-wrenching detail I have ever seen in an opinion at any level of the federal courts.  The fact section of the opinion–which served little or no legal/analytical purpose–spans over five pages of the slip opinion.  Id., at *2-6.  He spends two pages of the opinion alone describing the rape itself.  Id., at *3-4.  Scalia’s opinion states that the trial court did not err and that the Carr brothers may be put to death; seven other justices (all except Sotomayor) joined the opinion.

I believe that this opinion accomplished more than it initially seems.  On the surface, the graphic facts section removed any qualms the reader has about executing the Carrs–even the most liberal reader is left comfortably assured that the Carrs are genuinely evil and must die.  But more than that, Justice Scalia secured the votes of Justices Kennedy, Ginsburg, Breyer, and Kagan–including for his facts section.  This is a stronger signal than it seems.  Death penalty facts sections are a known ideological battleground, and one that has received above average attention this year.  See Horowitz, As Supreme Court Clerk, Ted Cruz Made Death Penalty His Cause, NY Times.  And a death penalty opinion written by a more neutral or anti-capital-punishment justice typically does not recount the subject crime in any detail.  See, e.g.Hall v. Florida, 134 S. Ct. at 1990 (entire description of underlying kidnapping, rape, and murder spans 59 words).  So, Court watchers (and certainly federal judges and their clerks) know on some level that death penalty facts sections have meaning.

In this context, Scalia’s Kansas v. Carr opinion has to be read as a bold gamble.  Richard M. Re, a brilliant young professor at UCLA Law, has described the Supreme Court’s signaling mechanisms, means other than opinions through which the Court indicates to lower courts the paths they should take.  See Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861, 1878; see also Re, More Supreme Court Signals.  Scalia’s opinion is a signaling mechanism–here, it is a show of strength to lower courts that he could command eight votes for the facts section.  Holding that kind of majority is never guaranteed in a death penalty case, and just because the justices agreed with Scalia on the legal questions, they did not have to sign onto his recounting of the facts.  Cf. Flood v. Kuhn, 407 U.S. 258 (1972) (multiple justices agreeing with Justice Blackmun’s conclusion but refusing to join his lengthy factual history of baseball).  Scalia’s maneuver could have backfired–either if word leaked out that a reticent liberal justice forced him to tone down the opinion, or God forbid, if multiple justices joined only his conclusion and pointedly refused to join his factual section.  He gambled that he could hold together a full majority for his facts section, and he did.

Scalia may not ultimately preserve the death penalty, and he certainly will not do it with a section of Kansas v. Carr.  But for now, he has stanched the bleeding for his ideological cohort in the capital punishment signaling fight.  In the process, he has likely brushed any lower courts that believed they were reading anti-death-penalty tea leaves a few feet back off the plate.


Justice Scalia’s All-In Signaling Gamble

Insurgency Theory in Fisher II

This post discusses Gregory Garre’s snippy argument in favor of affirmative action last week and questions whether it was a conscious application of insurgency principles.

Last week, the Court heard argument in Fisher v. University of Texas at Austin for the second time.  The first time, the Court arrived at a brokered solution in which it essentially punted the ball–a supermajority issued a compromise opinion commanding the Fifth Circuit to go back and look at the case again.  As it turns out, this brokered opinion was largely the result of some stellar brinksmanship by Justice Sotomayor, who scared the jenkies out of Justice Kennedy with a blistering dissent and made him back down (Joan Biskupic broke this story).  The case came back, and as I’ve explored in a prior post, the stars are now aligned for the conservative majority of the Court to deal a fatal blow to any race-conscious admissions policy.

This fact was not lost on Greg Garre, who argued the case for the University of Texas (and in favor of keeping affirmative action).  He is a regular player in front of the Court, having argued 39 cases (and counting). Prior to his current stint at Latham & Watkins, he worked in the solicitor general’s office under President Bush.  He knows the current Court quite well, and he can count to five.  He knew that he had no chance of a clear win in this case, because Justice Kagan was recused.  He knew that he had an overwhelming risk of a clear loss, because four justices (Roberts, CJ; Scalia/Thomas/Alito, JJ) are wholly hostile to race-conscious programs that benefit blacks and Hispanics.  Justice Kennedy, while not quite on their level, dislikes such programs as well.  So Garre was facing a situation where he was likely to lose and had no hope of winning.

Garre took an interesting approach to this conundrum, one that I believe was intentional.  Garre was repeatedly borderline rude to the conservative justices, and not just in that he was snippy or brusque–Garre violated perhaps the most inviolable commandment during oral arguments.  He suggested that the conservatives were politically motivated and impugned their good faith in questioning.  In response to Justice Alito’s line of questioning about whether minority students admitted under one program were exclusively poor and disadvantaged, Garre replied, “Your honor, we’ve never claimed that [they are all poor].  That’s a straw man argument.”  Tr. of Oral Arg. at 44-45.  Later, he used similar language in response to Justice Scalia’s question about whether individual classes at Texas were sufficiently integrated.  “Your honor, that’s a caricature of the University’s interests here.”  Tr. of Oral Arg. at 56.

These exchanges look relatively benign on paper, but they were poisonous on the audio transcript.  Garre expressed a level of near-contempt for the questioning coming his way.  Advocates almost never do this.  So the question becomes, why?  It could just be his over-familiarity with the justices.  Solicitors general have felt comfortable rebuking the Court in a way that non-solicitors wouldn’t.  See, e.g.Bond v. United States, Tr. of Oral Arg. at 38 (General Verrilli, in response to joking exchange between JJ Scalia & Alito:  “With all due respect — this is serious business.”).  But I don’t think that’s what Garre was doing here.

Multiple commentators in varied fields have noted that when a player is facing insurmountable odds, she should introduce as much randomness and chaos into the proceedings as possible.  Malcolm Gladwell referred to this as David & Goliath Theory.  It applies to insurgents attempting to fight larger armies–they have to knock the larger army off of its moorings and engage it in unpredictable, chaotic encounters.  See Nagl, Learning to Eat Soup with a Knife:  Counterinsurgency Lessons from Malaya and Vietnam (Praeger Publishers 2002).  It applies in football as well–as Bill Barnwell and Robert Mays frequently pointed out, when a team like Jacksonville plays a team like New England, Jacksonville should execute as many unpredictable strategies as possible and introduce as much randomness into the game as possible:  Jacksonville’s chances of winning the coin flip that emerges from the introduction of randomness are higher than its chances of winning a football game against New England.

I think that’s what Garre was doing here.  One of the seemingly-inviolable rules of oral argument is that you do not suggest that the justices have already made up their minds.  But I think Garre looked at the numbers, realized he was fighting a near-hopeless battle, and decided to destabilize the proceedings as much as possible.  Perhaps he wanted to brush Justice Alito back off the plate a bit, or maybe he just genuinely wanted to introduce variance.  It’s a commendable strategy if it’s what he was doing, because he sacrificed a portion of his personal relationship with the Justices for the sake of a client.  Sometime before June, we’ll find out if his insurgency strategies worked.

Insurgency Theory in Fisher II

An Additional Theory Supporting Prof. Hall’s Partially Prudential Doctrine of Mootness

Prof. Matthew Hall (my former civil procedure professor) has proposed a “partially prudential doctrine of mootness” in an effort to distinguish those moot cases that courts should dismiss from those moot cases which courts should still entertain.  See Matthew I. Hall, The Partially Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev. 562 (2009).  Under Professor Hall’s framework, courts should dismiss “issue moot” cases, in which the underlying issue has been irrevocably resolved, but should retain jurisdiction over “personal stake moot” cases, in which only the specific litigant’s personal interest in the case has evaporated.  Id. at 566.

I think this formulation is right, and I am far from the most notable party to agree with it.  See Killian v. Concert Health Plan, 742 F.3d 651, 673 (7th Cir. 2013) (Posner, J., dissenting).  But I think that the doctrine is bolstered by another argument at the Supreme Court level, one that differentiates issue mootness at One First from issue mootness in the district or inferior appellate courts–the develop of mechanisms within SCOTUS and the Supreme Court bar that circumvent the policies underlying justiciability doctrines.

We understand justiciability’s necessity in two capacities–a constitutional capacity and a normative capacity.  As a constitutional matter, Article III asks federal courts to entertain only cases or controversies.  U.S. Const. art. III, § 2, cl. 1.  We have interpreted this as a constitutional mandate that courts entertain only discrete cases with particularized stakes that come before them.  See Muskrat v. United States, 219 U.S. 346, 351-52 (1911).  We have provided prudential and normative justifications for this doctrine–the parties who litigate cases will litigate them more thoroughly with actual stakes, the underlying facts of the case provide a guidepost for courts to examine how a doctrine works in the real world, and the requirement to examine only cases or controversies prevents the courts from reaching out and deciding broad policy by fiat.  See Warth v. Seldin, 422 U.S. 490, 508 (1975); see also Letter from John Jay to George Washington, The Correspondence and Public Papers of John Jay. Edited by Henry P. Johnston. 4 vols. New York and London: G. P. Putnam’s Sons, 1890–93.

All justiciability doctrines theoretically serve these ends.  Thus, standing doctrine ensures that parties with a real interest litigate cases.  Ripeness doctrine ensures that those parties are properly invested in a case before they bring it.  And mootness ensures that the parties haven’t picked up their stakes and left town during the pendency of a lawsuit.  Additionally, justiciability is supposed to ensure that the courts do not function as a super-political branch, reaching out to find cases to decide and usurping the legislative branches.

But the continued development of the Supreme Court and the Supreme Court bar has eroded at least part of the normative and prudential justification for requiring full compliance with justiciability doctrines during SCOTUS review.  Undeniably, a fully-developed record is important, and justiciability doctrines carry full prudential force in the lower courts.  Those lower courts are also required by statute and tradition to hear most of the cases that they hear, rendering concerns about selective application of judicial power less pertinent.

But the Supreme Court has honed its case selection to a fine art, and the advocates that routinely play in front of that Court have elevated their case selection and presentation to a science.  First, the Supreme Court has petitioned the Congress (successfully) to strip almost all mandatory cases from its docket; certiorari grants now account for essentially every case the Court decides.  Second, the justices pool their resources into a certiorari pool, ensuring that cert petitions receive a thorough review and that the Court can hunt for the cases it wants with more precision.  Most importantly, the Supreme Court bar has honed its abilities–repeat players now have a much greater chance of getting a cert petition granted, and ideological players are able to advance issue-specific agendas with ever-greater precision.  (Obviously, issue advocacy is not new.  Thurgood Marshall and the NAACP did this quite well in the 1940s and 50s.  But I would submit that the Supreme Court bar now is more ideologically diverse and more specialized).  See Adam Liptak, Justices Offer Receptive Ear to Business Interests, N.Y. Times, Dec. 18, 2010.  All of these factors come together in a Supreme Court that is presented with multiple opportunities to address ideological issues in perfectly-teed-up vehicles.  It can reach out and make policy, and the Bar is talented enough to render any set of facts that the Court ideally desires.  We should at least be honest about it.

The Supreme Court, like it or not, is not simply “confronting the cases that come to it.”  Under these circumstances, the normative assumptions that underlie the reticence to hear personal-stakes-moot cases simply no longer exist at the SCOTUS level.  There are many factors to recommend Prof. Hall’s partially prudential model, but I think this factor additionally cuts towards its adoption in the context of Supreme Court review.

An Additional Theory Supporting Prof. Hall’s Partially Prudential Doctrine of Mootness

The Right to Be Forgotten:  An Equilibrium-Adjustment Perspective

In Europe, there is now a conditional “right to be forgotten.”  Though the right is “not absolute” and “has clear limits,” the Court of Justice of the European Union ruled that in some cases, a person can compel a search engine or internet information aggregator to remove information that is “no longer necessary or irrelevant.”  See Factsheet on the “Right to be Forgotten” Ruling, European Commission, available at In general, a European citizen has the right, in some circumstances, to erase embarrassing information about herself when that information no longer serves a compelling purpose.

Though many Americans would undoubtedly enjoy such a right, it doesn’t easily fit into our privacy traditions or our speech traditions.  The speech tradition analysis is easy:  Americans value free speech much more highly than do Europeans.  European cultures are much more inclined to limit speech that is not immediately dangerous because that speech is offensive or unpalatable.  See, e.g., § 130 Volksverhetzung (German criminal code penalizing any “assault[ on] the human dignity of others by insulting maliciously maligning,” or otherwise demeaning a national, racial, or religious group).  American culture used to limit speech much more, but our Constitutional traditions and general national consensus venerates the “marketplace of ideas” described by John Stuart Mill and Justice Holmes. See Abrams v. United States, 250 U.S. 616, 629 (1919) (Holmes, J., dissenting).

The American privacy tradition likewise isn’t conducive to a “right to be forgotten,” at least not at first glance.  American privacy traditions are heavily linked to concepts of property, especially the tangible real property of the home.  See, e.g., Florida v. Jardines, 569 U.S. ___, at *3-5 (2013) (describing tradition of homestead privacy); accord id. at *1-5 (Kagan, J., concurring) (acknowledging the Katz v. United States expansion of privacy rights to encompass reasonable expecations).  Americans have a firm view of that from which we can exclude others; we are quick to shut out nosy neighbors.  But equally embedded in the culture is an acknowledgement that once, through our own actions, information enters the public square, that information is discoverable.  We do not as easily acknowledge a right to wipe out information once we have released it.  The law likewise views such already-released information as fair game.  See Smith v. Maryland, 442 U.S. 735 (1979) (noting information released to third parties enjoys no reasonable expectation of privacy).

However, a specific theory of Fourth Amendment privacy may explain better why an American right to be forgotten would be justified and how it would work.  Orin Kerr, a GW professor, has popularized an “equilibrium adjustment” theory of Fourth Amendment jurisprudence.  See Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 479 (2011).  Essentially, equilibrium adjustment says that “the Supreme Court adjusts the scope of Fourth Amendment protection in response to new facts in order to restore the status quo level of protection.”  Id.  So when a new technology gives the police the ability to monitor our lives more closely than they previously could, the Court responds appropriately.  Kerr gives many examples of the equilibrium adjusting, but the phenomenon can be perfectly seen in Kyllo v. United States, 533 U.S. 27 (2001), where the Court disallowed the warrantless use of thermal imaging technology even after previously approving of numerous technology-aided searches.  See Kerr, 125 Harv. L. Rev. at 479 n.8.  Equilibrium adjustment does a very good job explaining updates in the Fourth Amendment, and it also seems to explain some cultural attitudes—it just seems unfair that the police can search anyone’s house with thermal imaging technology, even if we can’t articulate why.

Equilibrium adjustment has interesting implications for an American right to be forgotten.  In essence, an EA-influenced American right would seek to return the public information available about a person to the kind of information available to her neighbors and countrymen throughout the course of history.  (Of course, the Fourth Amendment only applies to government searches, so such a “right” and its equilibrium-adjusted contours would exceed pure Fourth Amendment principles).  The ability to search through a person’s entire electronic life at the click of a mouse unquestionably represents a profound equilibrium shift from the first two hundred years of the Republic, and we could acknowledge that without upending other core American concepts of speech and privacy.  Indeed, such a public-perspective equilibrium shift would mirror a potential shift in actual Fourth Amendment law.  See United States v. Jones, 565 U.S. ___, at *1 (2012) (Sotomayor, J., concurring) (questioning continued validity of third party doctrine).

Overall, equilibrium adjustment presents a way of thinking of a right to be forgotten that does not require us to radically rethink American values.  Society can adjust its privacy equilibriums through legislation as well as through Constitutional fiat, and a law attempting to restore a pre-digital degree of “forgottenness” would merely restore a balance that was uncontroversial for decades.

The Right to Be Forgotten:  An Equilibrium-Adjustment Perspective

Norm Cascades and the Principle of Lenity

If you’ve been following the news over the past few weeks, you’ve seen the story of Cecil the lion, a particularly beloved conservation animal that was lured out of his preserve by an American dentist and brutally killed.  The public outcry and backlash has been enormous.  The dentist’s family has been threatened, he’s gone into hiding, and his business has been shuttered–for now temporarily; perhaps permanently.

Several commentators have noted that despite the relatively horrific circumstances of Cecil’s death, it’s troubling the degree to which a mob mentality has already convicted his killer and punished him with incredibly brutal repercussions.  See, e.g.From Gamergate to Cecil the lion:  internet mob justice is out of controlVoxavailable at  They’ve made salient points about the need for due process and the proportional response inherent in most (though not all) of the sentencing laws that society has chosen to enact.  And they’ve noted that the internet and other instantaneous, horizontal communications technology make a mob mentality much more likely to arise and much easier to execute.

But I think there’s another philosophical/legal aspect to the recent events.  The online community’s quick responsiveness to stimuli, combined with the voracious response and life-altering consequences that can be inflicted strike me as violating some civilian, non-governmental, philosophical principle of lenity.  The principle of lenity states that when a law can be interpreted either to establish an accused’s innocence or his guilt, it must be interpreted to establish his innocence.  What the principle of lenity is fundamentally designed to do is provide advanced notice — you shouldn’t be thrown into jail for an act that you couldn’t have reasonably anticipated would be criminal.

Now, the principle only applies against the government.  But there seems to be some equivalent notion in society; it has usually seemed wrong to suddenly move the goalposts on people with regards to what behavior is acceptable and what behavior is punished, particularly severely.

It seems, however, that this recent phenomena is upending the principle to an extent.  Cass Sunstein has described what’s happening as a “norm cascade:” the idea that a new norm can quickly emerge and overtake society at a pace much more rapid than norms usually overtake society.  See Cass Sunstein, Social Norms and Social Rulesavailable at  Sunstein invoked the norm cascade principle recently to describe the incredibly rapid shift in public opinion on the Confederate battle flag.  Though many or most people already opposed the flag, it was to some extent a viable issue on which two opinions existed in organized society.  That’s largely changed, and it’s changed in the short time since the Emmanuel Church massacre.

These cases are so hard to lend any sympathy to:  poaching is horrifying, and support for the Confederate flag is a pretty great indicator that you’re somebody I don’t want to key my moral compass to.  But other, slightly grayer examples illustrate the danger.  The Mozilla CEO was ousted in 2012 for having supported California’s Prop 8 (opposing same-sex marriage) in 2008, even though President Obama and Secretary Clinton likewise opposed same-sex marriage at that point.  Gay marriage has been another classic norm cascade–in the window of ten years, it went from a useful wedge issue for the right, to somewhat widely accepted, to a mandate of federal constitutional law.

Ultimately, the issue here isn’t just mob justice, or the quickness of the internet.  It’s the extreme punishment of the first few people that are on the wrong side of a norm cascade.  The behaviors for which they are punished may be recognized as questionable, but in a short amount of time, they shift from questionable to capital crimes.  We have to ask whether any philosophical or social lenity is due when a cascade catches someone as it’s rolling down a hill.

Norm Cascades and the Principle of Lenity

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