MARY REICHARD, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 15th of October, 2018.
Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher.
Well, the Supreme Court is back to a full bench after Brett Kavanaugh became the court’s 114th justice. If you were in the courtroom, you’d find Justice Kavanaugh on the farthest right, the seat that only last week Justice Neil Gorsuch occupied.
Now, Gorsuch moves up a rung in seniority.
After that contentious confirmation hearing that some say damaged the Court, the justices displayed some welcome levity. Justice Elena Kagan who sits next to Justice Kavanaugh laughed with him before the day’s work began.
Off the bench, a bit of light hazing follows the newest junior justice. When the court is seated in the private conference room, it will be Justice Kavanaugh who must answer the door when someone knocks. It’s his job to fetch coffee or to retrieve misplaced reading glasses.
Not only that, but he also must listen to complaints about the cafeteria food.
REICHARD: Justice Gorsuch served as the junior justice for only 18 months.
Justice Kagan endured that job for 7 years.
The Chief Justice explains the practice sort of grounds a person as he or she adjusts to being a justice. Justice Kagan’s said that adjustment is akin to “drinking out of a firehose.”
After welcoming Justice Kavanaugh, the Chief Justice wished him a “long and happy career in our common calling.”
The man he replaced and once clerked for, retired Justice Anthony Kennedy, was also in the courtroom for Kavanaugh’s first day.
EICHER: So today, we start with Justice Kavanaugh’s first arguments.
Two cases were consolidated into one, and another case dealt with aspects of the same law: the Armed Career Criminal Act, called ACCA. It defines such a criminal as someone already convicted three times of violent felonies or serious drug charges, and it provides additional prison time if a court finds such a person guilty of possessing a gun.
Justice Samuel Alito laid out his attitude toward this law, and it’s one that’s widely shared.
ALITO: I mean, you’re not exactly on a winning streak here in ACCA cases. [Laughter] You might have gotten a hint that a majority of the Court really hates ACCA and is picking it apart bit by bit by bit.
REICHARD: For such a serious topic, there was plenty of joviality. The justices came across as trying to find alliances with each other.
I’ll draw audio from all three cases but keep the facts to only one of the cases for simplicity—because however the court rules here, it will apply to all of them.
Here’s the background: A man by the name of Denard Stokeling had three prior convictions on his record when he burglarized a restaurant in Florida.
He pleaded guilty to possessing a gun, so prosecutors went for a much longer sentence under the ACCA.
Stokeling, for his part, wants to avoid that longer sentence. And he argues one of those earlier convictions ought not count as a violent felony. What he did was snatch someone’s necklace. Against the law, clearly, but not so obviously violent.
Florida law allows “slight force” to count as an element of robbery, but Stokeling’s legal team says that’s too broad.
And that’s a recurring theme before the Court.
Just what qualifies as one of those earlier offenses? The law says burglaries are violent felonies, but nowhere does it spell out the details. Does using physical force count? What about just the threat of physical force?
Lawyer for the inmate tried to show how nebulous the concept of force can be. Under Florida law, she argued, just tightening one’s hand around a dollar bill before releasing it, as someone’s trying to snatch it away, that’s enough to qualify as force.
Chief Justice Roberts conducted an experiment prior to argument to figure out how much force is too much force.
ROBERTS: I actually tried that, holding, since I knew this was your most important case, and I held on to a dollar bill and asked each of my law clerks to try to pull it out of my hand. And I was surprised. I mean, people think, it tears easily. Well, it tears easily if you go like this, but if you’re really tugging on it, I mean, I’m not saying nobody could do it, but it requires a lot of force, more than you might think.
REICHARD: Justice Kavanaugh’s first question showed he’d prepped well and knew the controlling precedent at play. Here, he addresses Stokeling’s lawyer:
KAVANAUGH: In Curtis Johnson, you rely heavily on the general statements of the court, but the application of those general statements was to something very specific: Battery and a mere tap on the shoulder. And all Curtis Johnson seemed to hold was that that was excluded. So why don’t we follow what Curtis Johnson seemed to do in applying those general statements to the specific statute at issue here? And why wouldn’t that then encompass the Florida statute, which requires more than, say, a tap on the shoulder?”
REICHARD: To the lawyer arguing that his clients can’t possibly have adequate notice of the penalty for a particular crime, Kavanaugh shot back:
KAVANAUGH: But on notice, if you’re I think if you’re convicted three times of burglary for burglarizing an R.V. you’re on notice. I don’t understand the notice point.
REICHARD: Justice Alito went on to ask why shouldn’t the court look at what actually happened in the real world with offenses like burglary? Why keep using this approach that ropes every type of crime into the same category?
Justice Ginsburg interjected here, and Justice Alito added a refreshing take on admitting mistakes and thinking of the future.
GINSBURG: Because didn’t this court say you couldn’t do that?
ALITO: Yeah, the court said that, but the Court isn’t always right. Sometimes we make a mess [laughter] which we have done in this, imho, in this area, we have made one royal mess. Maybe we ought to go back and correct our own mess.
REICHARD: A ruling in this case will affect robbery statutes everywhere. Given the recurrent problems with the 32-year-old ACCA, I expect some adjustments to it.
This next case pits a private landowner against her neighbor and her town.
Rose Mary Knick owns 90 acres of farmland in eastern Pennsylvania. The land’s been in her family since 1970.
Her neighbor says some of his relatives are buried on that land, and he wants access to it. He persuaded the Township of Scott, Pennsylvania, to pass an ordinance six years ago: it requires anyone who owns property with a cemetery on it to allow public access during daylight hours. Hefty fines punish those who refuse that.
Soon after, an enforcement officer entered Knick’s land without her consent and decided some stones he found were grave markers.
Rose Mary Knick says there’s no such thing. And if the government insists on it, it needs to pay up for turning her private property public.
After all, the Fifth Amendment to the Constitution says the government can’t take private property for public use without “just compensation.”
So Knick sued in state court, but her case got tossed out. The court said she’d have to wait to file suit after authorities levy a fine against her, not before.
So she sued in federal court. There she found out her suit couldn’t go forward because of a Supreme Court ruling from 1985, called Williamson County.
That case says landowners in her situation must first exhaust the state process before appealing to the federal courts.
Knick calls that a classic Catch-22, and she wants the Supreme Court to reverse that old case.
Justice Stephen Breyer seemed loath to do that.
BREYER: Williamson was decided 32 years ago. This is a very complicated area of law. Why not sleeping dogs lie?
REICHARD: Knick’s lawyer, David Breemer, wasn’t having it.
BREEMER: Williamson County is not a sleeping dog. It has run wild through the state and federal courts for 30 years swallowing just compensation rights of ordinary people like Ms. Knick. There is no way to set things right except overruling that portion of Williamson County and returning…
REICHARD: Typically, if you have a constitutional rights case, you can pick which court you want, federal or state. But there’s been this carve-out for certain things for different treatment.
Property rights is one of them.
Lawyer Breemer argued it’s just not fair to close the federal courthouse doors to property owners.
But Justice Sonia Sotomayor pointed to other carve outs.
SOTOMAYOR: I’m sorry, the courthouse doors are closed to people on tax issues, even though there’s constitutional claims. So there’s a clash that we have, both for doctrinal reasons we’ve closed the courthouse doors.
REICHARD: The lawyer for the town, Teresa Sachs, picked up on Justice Breyer’s reluctance to change things.
She argued that making a change now would create legal chaos.
SACHS: …Would create federal jurisdiction over every local land use planning decision made in the 39,000 plus jurisdictions across the country. We ask the court to affirm Williamson b/c it was correct then and it is correct now in this case.
REICHARD: But Justice Samuel Alito leaned in favor of the aggrieved landowner. Listen to this exchange with Sachs, for the town.
ALITO: You can’t tell me whether you owe her any money?
SACHS: The state has to tell her whether…
ALITO: You are the state. You represent the township. The township is part of the state. So this before us here is the Commonwealth of Pennsylvania. Does the township owe her any money? Yes or no. I don’t see how you cannot have an answer to that question.
SACHS: Your honor I can’t answer that question is because that is why inverse condemnation exists..
REICHARD: Let me define a term: Inverse condemnation is the process Pennsylvania has that the town wants Rose Mary Knick to complete fully before she runs to the courthouse.
Justice Neil Gorsuch saw some room for foolishness in that:
GORSUCH: It’s a simple claim against the state for trespass. That’s what an inverse condemnation suit is. Nothing more, nothing less. So why should we single out this particular right, the takings clause, for such disfavored treatment, to wait to exhaust state remedies that wind up in this ripeness world to yield a moot federal claim?
SACHS: A couple of answers to that question your honor.
REICHARD: Here’s Sachs’s main point: She argues the Constitution doesn’t say you have a right to hang on to your property if the government follows the process laid out for it. But in reply, Justice Gorsuch pointed out we don’t wait for any such “process” for violating free speech or other Constitutional rights.
You might think that a Supreme Court ruling here would bring an end to Rose Mary Knick’s long quest. It won’t.
Depending on the ruling, she’ll have to keep fighting it out in state court, or she’ll be able to continue on in federal court.
If I had to guess, I think the court will find a way to limit that old ruling in Williamson County. Thirteen years ago, Justice Anthony Kennedy urged doing exactly that in another case.
Perhaps five justices will be persuaded to do it this time. It’d be interesting if Kennedy’s one-time clerk, Justice Kavanaugh, provided the margin of victory.
And that’s this week’s Legal Docket.