Krishnakumar: More Than Meets the Eye in Justice Scalia’s Sykes Dissent?

The following is a guest post from Anita Krishankumar:

Justice Scalia’s dissenting opinion in Sykes v. United States issued last Thursday, has quickly received a fair amount of buzz in the blogosphere.  The buzz is understandable—the Sykes dissent is a Scalia classic:  pithy, full of colorful phrases, and entertainingly blunt.  But there is more to the opinion than just a few memorable Congress-bashing quotes.  Indeed, there seem to me to be at least two related statutory interpretation techniques, or methodological biases, at work in Justice Scalia’s dissent.  The first is an intolerance for imprecise statutory constructions that leave courts to engage in messy, case-by-case applications of a statute down the line.  The second is a limited, black-and-white view of the reasons why Congress might end up enacting a statute that calls for just such messy, case-by-case judicial judgments in the implementation of a given statute.

I have argued elsewhere that the Supreme Court sometimes employs an “anti-messiness” principle in interpreting statutes—meaning that it deliberately rejects statutory constructions that require case-by-case factual inquiries or judicial judgments that will prove “messy”/complicated/confusing for implementing courts to administer.  Justice Scalia is a strong proponent of this interpretive principle and his Sykes dissent very much reflects his commitment to such messiness avoidance.  For example, his dissent criticizes the majority opinion on the grounds that “instead of producing a clarification of the Delphic residual clause, [it] produces a fourth ad hoc judgment that will sow further confusion.”  In a bit of an I-told-you-so moment, his dissent also points to his opinion in James v. United States, an earlier case interpreting the ACCA’s residual clause, which warned that the Court’s interpretation “permit[ted] an unintelligible criminal statute to survive uncorrected, unguided, and unexplained.”  The intervening years, Justice Scalia’s Sykes dissent scolds, have proved that warning correct.  In Justice Scalia’s view, one of the Supreme Court’s roles as statutory interpreter is to give statutes a clear, predictable meaning that can be implemented almost automatically, without the need for further judicial line-drawing or clarification.  If such line-drawing or clarification become necessary, then the Court’s initial interpretation was by definition inadequate.  Hence his admonition in Sykes that “Four times is enough” and his sarcastic observation that “We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.”

Justice Scalia’s Sykes dissent also criticizes the Court, in terms reminiscent of formalist Judge Keen in the Legal Process classic the Speluncean Explorers, for teaching Congress bad habits by tolerating such hopelessly imprecise statutes.  “[O]ur indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution,” he complains.  But it is worth noting that Justice Scalia’s fair-notice-based constitutional argument is weak in cases involving sentencing provisions, as opposed to cases involving the definition or elements of a criminal offense.  There is no uncertainty as to the illegality of the defendant’s conduct in ACCA residual clause cases; what is at issue is the application of a sentencing enhancement to the defendant’s punishment.  The fair notice argument carries significantly less weight in this context than in the context of determining what underlying conduct is prohibited.

Notably, Justice Scalia saves his sharpest criticism for Congress itself, and this part of his Sykes dissent has garnered most of the attention in the blogosphere.  “Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation,” Justice Scalia accuses, “is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty.”  This harangue against Congress seems to assume that the ACCA’s residual clause intentionally was left vague by a Congress that was shirking its duty.  The problem with this argument is not that Congress never behaves in this fashion; it surely does in some cases.  But Justice Scalia’s dissent paints with a broad brush stroke and ignores the very real possibility that Congress may have had other, less objectionable, reasons for not providing an exhaustive list of the crimes that count for purposes of the ACCA’s residual clause.  Perhaps given the large universe of state crimes that present a “serious potential risk of physical injury to another,” Congress was loath to provide a lengthy list within the statute—on the theory that its list almost certainly would leave out some crimes that should be included and that those crimes then would be automatically excluded under an expressio unius argument.  Or perhaps Congress genuinely failed to anticipate the confusion that the ACCA’s residual clause would cause for implementing courts.  Alternatively, Congress may have made a judgment that courts, which are experienced in evaluating the elements of a crime, are better suited to drawing fine distinctions between specific offenses than is the legislature and may accordingly have left the sorting out of such crimes to judges in the implementation stage.  It also is possible that Congress, unlike Justice Scalia, has agreed with—or at least had no significant problems with—the manner in which the Court has applied the residual clause thus far; that is, perhaps Congress is satisfied with the Court’s ad-hoc judgments in James, Begay, and Chambers and has chosen to spend its resources legislating on other matters that it deems more pressing.

Justice Scalia seems to dismiss such possibilities with a glib flip of the hand, claiming that “Congress can quickly add what it wishes” to the statute.  But as Justice Scalia undoubtedly is aware, few things happen quickly or easily in Congress.  His Sykes dissent thus presents an interesting take on the Court-Congress dialogue:  He seems to be advocating that the Court should reject statutory language that requires messy, case-by-case judicial implementation and should seek—through a “void for vagueness” ruling—to force Congress to rework statutes that produce undue messiness in the application (“undue” as defined by Justice Scalia, since no other Justice joined his dissent)—and that it should do so irrespective of how satisfied Congress itself might be with the judiciary’s current implementation of such statutes.

Anita Krishnakumar

St. John’s University School of Law

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