I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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“Conceivably, they will simply throw the opinions into the air in frustration”

Here’s a nice tirade.

Justice Scalia (by himself) dissented from denial of certiorari in Derby v United States, representing a group of sentencing guidelines cases that involve the question whether various state offenses would or would not count as violent for guidelines purposes.  The rules (both from the Supreme Court and among the lower courts) are becoming stranger and stranger, to the point that Justice Scalia thinks they’re verging on the random.  He’s not happy with that:

How we would resolve these cases if we granted certiorari would be a fine subject for a law-office betting pool. No one knows for sure. Certainly our most recent decision interpreting ACCA’s residual clause, Sykes v. United States, ante, p. 1, would be of no help. The “rule” we an- nounced there, as far as I can tell, is as follows: A court must compare the degree of risk of the crime in question with the degree of risk of ACCA’s enumerated offenses (burglary, extortion, arson, and crimes involving the use of explosives) as a “beginning point,” ante, at 6–7; look at the statistical record, which is not “dispositive” but sometimes confirms “commonsense conclusion[s],” ante, at 8; and check whether the crime is “purposeful, violent, and aggressive,” unless of course the crime is among the unspecified “many cases” in which that test is “redundant with the inquiry into risk,” ante, at 11. And of course given our track record of adding a new animal to our bestiary of ACCA residual-clause standards in each of the four succcessive cases we have thus far decided, see ante, at 2–4 (SCALIA, J., dissenting), who knows what new beasties our fifth, sixth, seventh, and eighth tries would produce?

Surely a perfectly fair wager. If it is uncertain how this Court will apply Sykes and the rest of our ACCA cases going forward, it is even more uncertain how our lower-court colleagues will deal with them. Conceivably, they will simply throw the opinions into the air in frustration, and give free rein to their own feelings as to what offenses should be considered crimes of violence—which, to tell the truth, seems to be what we have done. (Before throwing the opinions into the air, how- ever, they should check whether littering—or littering in a purposeful, violent, and aggressive fashion—is a felony in their jurisdiction. If so, it may be a violent felony under ACCA; or perhaps not.)

Since our ACCA cases are incomprehensible to judges, the statute obviously does not give “person[s] of ordinary intelligence fair notice” of its reach. United States v. Batchelder, 442 U. S. 114, 123 (1979) (internal quotation marks omitted). I would grant certiorari, declare ACCA’s residual provision to be unconstitutionally vague, and ring down the curtain on the ACCA farce playing in federal courts throughout the Nation.

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