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.