In Borden v. US, Justices Gorsuch And Thomas Indicate They View The Law As Taking Precedence Over Ideology


Good. That’s two: maybe there are more.

So- called “three strikes” laws are a conservative invention to bind the hands of liberal judges inclined to give too-lenient sentences to repeat offenders because of superfluous factors like a tough childhood. As a result, liberal justices generally detest the device, arguing that it takes the judgment out of judging.

In Borden v. US, a case that asks if a conviction for a violent felony based on recklessness or negligence rather than malice should count as a “strike,” the three bedrock progressives on the U.S. Supreme Court, Justices Breyer, Sotomayor and Kagan, voted predictably, against the application of a “three strikes” law. If all six conservative justices showed similar fealty to their biases, the petitioner, Charles Borden, Jr., would face an enhanced sentence after pleading guilty to possessing a firearm as a convicted felon, because he had three previous convictions for “violent felonies” according to Tennessee. Confounding the Supreme Court politicizers who don’t believe judges are capable of being ethical—which requires putting aside personal biases and loyalties to do the right thing—Justices Clarence Thomas and Neil Gorsuch voted with the liberals. They did so because they were following the letter of the law, and that is the Supreme Court’s job.

In Borden, prosecutors argued for the mandatory 15-year sentence based on three earlier convictions that included on for “reckless assault.” Borden argued that such a conviction was not a “strike’ according to the wording of the law, and in law, words are supposed to matter. His claims were rejected in the lower courts, and Borden was sentenced as a “career-criminal.”

Justice Elena Kagan, writing for just four justices in what will be called a “plurality opinion,” explained why SCOTUS disagreed. She said that the law as drafted excluded excluded crimes in which the defendant had merely been reckless. Its words “against the person of another,” she wrote, requires volitional conduct and “demands that the perpetrator direct his action at, or target, another individual.” One example she cited was a hypothetical commuter, late for work, running a red light in his haste and harming a pedestrian. That driver would only be reckless, and “has not directed force at another: He has not trained his car at the pedestrian understanding he will run him over.”“In ordinary language,” Justice Kagan concluded, “against” means “in opposition to.”

Indeed it does. Would the law’s drafters have agreed that a merely reckless act shouldn’t count as a “strike”? It doesn’t matter. Sloppy drafting is no excuse. Laws are, or should be, what their words say they are.

In this case, the left-leaning justices could follow the law and still stay within their comfort zones, also known as biases. We can’t tell if their votes were principled or not: experience and history has taught us that ideological justices, like lawyer advocates, can devise a persuasive legal argument to support a decision made on ideological or political grounds after the decision has been made.

The reason the decision was only a plurality one is that Clarence Thomas, is is his wont, reached an eccentric reason to support the decision that differed from his colleagues. He argued in a separate opinion that “a crime that can be committed through mere recklessness does not have as an element the ‘use of physical force’ because that phrase ‘has a well-understood meaning applying only to intentional acts designed to cause harm.’”

But again, Thomas, who is not inherently hostile to “three strikes” laws, was holding the statute to the meaning of its words.

In his dissent, Justice Brett Kavanaugh protested that “the court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence.” He argued that the words “offenses against the person,” is a widely used legal term of art that encompasses categories of crimes and does not connote degrees of culpability, and the ordinary meaning of “against the person of another” encompasses recklessness. His analogies: “If an individual fires a gun recklessly at a house and injures someone inside, that individual has used force against the victim. If an individual recklessly throws bricks off an overpass and kills a driver passing underneath, that individual has used force against the victim. If an individual recklessly drives 80 miles per hour through a neighborhood and kills a child, that individual has used force against the child.”

I’d say that the first two of the Justice’s examples do involve an intentional act of force against someone; there is no reason to fire a gun at a house or throw bricks off an overpass except to create danger for a human being. His last example is essentially Kagan’s: the speeding is reckless, but its only intent is a non-criminal one. But Kavanaugh’s argument is still legitimate. The question is whether he made them to justify a”law and order” measure that he was predisposed to protect.

The more frequently we see the justices voting against their presumed biases, the more credibility the U.S. Supreme Court has. Since Congress has no credibility at all, this is more important than ever. In Borden v. U.S., we have the added benefit that the Court, one way or another, reached the right decision.

By all means, read the opinions. Whatever their motivations, all three are fascinating an thought-provoking.

4 thoughts on “In Borden v. US, Justices Gorsuch And Thomas Indicate They View The Law As Taking Precedence Over Ideology

  1. When the debate over “three strikes” laws was hot and current, I supported them mostly on a law-and-order basis. I have come to oppose them after decades of their operation and seeing some of they ways in which they fail to achieve a just result, and in fact exacerbate injustice.

    I get the impetus — back in the late 1980’s, there were numerous instances of liberal federal judges giving lenient sentences to violent multiple offenders who then went on to do what violent multiple offenders do — engage in more criminal activity. The mostly bipartisan solution to this “problem” was three strikes laws.

    Most of the abuses of the three strikes arrangement happen, like this case, on the margins. The original intent was not to capture every multiple felon, but only the violent ones who refused any efforts at rehabilitation or returning to society as other than a violent criminal.

    “Three strikes” eventually made it into most state law books, where it was even more egregiously abused by courts and law enforcement. A parade of minor drug and multiple offenders where their third strike was a relatively minor crime the legislature had deemed a felony at some level wound up serving decades in jail because of three strikes. As these cases piled up and became more and more indefensible, I became opposed to the law as implemented.

    I hope this is the opening shot in getting “three strikes” modified to something useful instead of what it currently is — a vehicle for making prosecutors look tough on crime at the expense of justice.

  2. I hope that all judges rule based on the constitutional requirements. I don’t want any judge in this country basing rulings on what a political party wants.

    I’ve been a conservative or right winger or whatever my whole life and hate the idea that a judge might rule for liberal or conservative positions.

    Party or ideological aguments should happen in legislative bodies. Once a law makes it into the books if a group of citizens or an individual citizen has an issue with it is when it should be scrutinized by judges that will compare it to the constitution and rule accordingly without a taint of a political party to bend or shape the ruling.

    If I am upset by their ruling I can live with that quite easily if I can be confident that their ruling was based on the rules on the inside of our national monopoly box and not a set of house rules made up to make one group or another feel better about themselves.

    Also, I found this blog just after the election and occasionally disagree with some of the conclusions of the writers but enjoy reading all of it. Thanks for putting out a good product every day.

    • Thanks , Burt. If anyone agreed with me all the time, that would be worrisome: it would mean I have a doppleganger out there, and as my wife would be the first to say, one of me is more than enough.

      Thanks for the comment, and keep ’em coming.

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