A fractured Supreme Court on Thursday narrowed the scope of a key phrase in the Armed Career Criminal Act, ruling that crimes involving recklessness do not count as “violent felonies” for the purpose of triggering a key sentencing enhancement.
Justice Elena Kagan announced the judgment of the court and wrote an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch. Justice Clarence Thomas did not join Kagan’s opinion but concurred in the result. That means that five justices rejected the federal government’s more expansive interpretation of the term “violent felony” and handed a victory to a criminal defendant who argued that the sentencing enhancement did not apply to his conduct.
The case, Borden v. United States, involved a provision of ACCA that imposes a 15-year minimum sentence on anyone convicted of being a felon in possession of a firearm if the person has three or more prior convictions for a “violent felony.” The term “violent felony” is defined, in relevant part, as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
Nothing terribly noteworthy in the case. What I was most struck by is the snark level in Justice Kagan’s plurality and Justice Kavanaugh’s dissenting opinions. This is not polite disagreement; it’s vehement, in-your-face disagreement. Unfortunately, this seems to be increasingly par for the course for the Court (in its statutory cases at least). I’ll also just note the plurality’s emphasis on grammar rules — i.e., the fact that the “against another person” phrase modifies the “use of force” phrase. It feels, anecdotally, like the Court is placing more and more emphasis on grammar-based arguments lately.