ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.
In today’s column I first offer a different, nuanced, way to think about the current court composition.
Then I’ll switch gears. Last month I previewed Blanche v. Lau, a crimmigration case requiring interpretation of interwoven, and somewhat undefined, immigration rules. After listening to the oral argument, I think there is an easy, and prudentially narrow, way for the government to prevail.
My 2-3-4 “wild card court” theory
Sarah Isgur’s new best-selling book Last Branch Standing is great fun, and remarkably accessible for Supreme Court nerds and newbies alike. She begins by providing much statistical support for describing the current array of nine justices as “a 3-3-3 court”: three generally conservative justices (Clarence Thomas, Samuel Alito, and Neil Gorsuch), three generally liberal justices (Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson), and three in the middle (Chief Justice John Roberts, Brett Kavanaugh, and Amy Coney Barrett), an alignment that “isn’t rare” and often leads to decisions decided by a 6-3 vote.
Below I describe a slightly more nuanced way of thinking about our current nine justices: as a 2-3-4 “wild card court.” This is by no means a criticism of Isgur’s description. Indeed, I accept and applaud her analysis as generally accurate (if a bit oversimplified at times) – and much more entertaining than my gray writing style. But my view shifts Gorsuch more to the middle, rather than linking him with the more reliably conservative (ideological?) Thomas and Alito. And I suggest that in any given case, depending more on specific topics and specific facts rather than “politics,” any one or two of the four justices “in the middle” can act as “wild cards” to shift a decision their way.
Let’s start with the basics. It is still true that over time, about half of the Supreme Court’s decisions are unanimous. This is true even in cases that initially attracted “big case” media attention, such as last week’s First Choice v. Davenport decision (in which the court unanimously sided with a faith-based pregnancy center in a First Amendment dispute). Another 20-25% or so (precise numbers are debatable) of the court’s decisions last year were decided by votes of 8-1 or 7-2. So about a third or less of the court’s cases are decided by a close 6-3 or 5-4 vote. This means that precise vote-count predictions and analyses of Supreme Court decisions aren’t essential in most cases. On the other hand, the close decisions are often the most important – for example last week’s Voting Rights Act decision. So individual justice voting analyses are still important.
In the closely divided vote cases, it is undoubtedly clear that Sotomayor, Kagan, and Jackson currently function (and have for four years) as a pretty reliable “liberal” three-justice bloc. Of course, there are always exceptions to any generalization – for just one example, Kagan and Jackson were divided in the recent “transgender talk therapy” decision, Chiles v. Salazar. Still, I am prepared to think of these justices as the liberal “3” in my theory, and I doubt most court-watchers would dispute that.
Similarly, I think it’s clear that Thomas and Alito (the oldest and longest-serving justices) function just as regularly as a “conservative” two justice bloc. (If any readers disagree please let me know.) These 2, plus the liberal 3, are at opposite ends of most important Supreme Court decisions. So many contentious, high-profile cases start with a presumption of a 3-2 split, with neither group having enough votes to win.
Thus four justices are “in the middle” – or more accurately and less ideologically, 4 justices remain “in play” – in many closely divided cases. And they not infrequently vote “against type.” As I described last summer (both for the ABA and SCOTUSblog), half of the pure criminal law decisions in the 2024-25 term that went the criminal defendant’s way were written by justices in this middle group. Let’s look briefly at each of these four justices.
I’ll start with Gorsuch. Here I part slightly with Isgur. She lumps Gorsuch together with Thomas and Alito (and calls them “honey-badgers“ – must be a Texas term). To be fair, Isgur does say that Gorsuch is “distinct” and that he reliably votes “with the liberals” in criminal and Native American “tribal lands” cases. To this I would add individualized immigration cases, such as Sessions v. Dimaya where Gorsuch provided the deciding vote limiting the grounds for a lawful permanent resident’s removal. And there was also his textualist vote in Bostock v. Clayton County, where he was the author and deciding vote in favor of finding that federal sex discrimination laws cover gay and transgender persons.
Many have also noted that Gorsuch often seems to side with “the little guy” in government cases; as Isgur puts it, he “fight[s] against government overreach.” I agree. It’s why, as I wrote about last summer, Gorsuch consistently expresses great faith in jury trials. When Gorsuch sees facts that look like an individual was treated unfairly by government bureaucracy, whether it be criminal, immigration, Native Americans, or taxes, his vote can go against predicted type. So a 3-3-3 court is, in my view, oversimplified. Gorsuch is not so much one of 3 reliable conservatives, as he is better thought of as a wild card in play, a possible “liberal” – or as he might (or might not) say, libertarian – vote, when a case, no matter how characterized, can be presented as one of individual unfairness.
Similarly, Barrett is often in play more than some ideologues want a “Trump-appointed conservative” to be. Yes she was a sure vote against Roe v. Wade. But she is also a thoughtful and careful law professor, generally unwilling to go to extremes. Thus she dissented on very important points in the presidential immunity case, Trump v. United States (and yes, she styled those disagreements as a “concurrence” rather than a dissent). Similarly, in Vidal v. Elster (again styling it as a concurrence) she rejected the originalist “history and tradition” approach in favor of settled doctrine and precedent. And in Fulton v. Philadelphia, Barrett declined to join other justices in a rush to overrule Employment Division v. Smith – and she brought Kavanaugh with her. (Smith, a decision authored by Justice Antonin Scalia and now 36 years old, pits individualized religious practices against “generally applicable” laws, and is highly controversial.) Others have noted her independence in “big” cases. My view is that Barrett is an intelligent wild card in play in any case requiring a careful lawyerly approach. (Not dissimilarly, Isgur rates her high on a 1-10 “institutionalist” scale.)
This leaves Roberts and Kavanaugh. I think that almost always you have to play these two justices as a wild card pair. They vote together in the majority more than any other justices. Kavanaugh is a self-confessed fan of the chief and defends him publicly. Their backgrounds are remarkably similar (both worked as litigators and strategists for Republican presidents) and they are just a half-generation apart (Roberts is 71, Kavanaugh is 61). Kavanaugh has a more public independent streak, frequently publishing separate concurrences and dissents – by contrast, the chief filed no dissents or concurrences last term. Some longtime court observers see Kavanaugh as “the new Anthony Kennedy,” a median justice whose seat Kavanaugh assumed (and who he clerked for). As Isgur explains, he is statistically the justice most likely to be “in the middle” with a dispositive fifth vote. And as others have observed, he often expresses a more “moderate” view than many of the other justices, and a polite deferential tone, at oral argument, perhaps still stinging from the extreme hostility generated during his confirmation fight.
Meanwhile, my view is that Roberts, as chief justice, is today more interested in his place in history, as opposed to pursuing passionate politics in any individual case. He seems uninterested in fighting and understandably seeks calm and collegiality regarding the court and federal judges in general. I think he is “in play” whenever he can be the majority vote and thereby keep the opinion-writing assignment to himself. Indeed, though he undoubtedly leans right, he is occasionally more moderate than his conservative colleagues – witness his separate opinion in Dobbs and his dispositive vote in the 2012 decision upholding the Affordable Care Act. If Kavanaugh is going to provide a fifth vote, the chief will often go that way too, to be on the winning (and assigning) side.
Bottom line: I urge you to consider that, in any specific close case, there are often four justices in play. The court starts with a solid 2-3 divide (Thomas and Alito, versus Sotomayor, Kagan, and Jackson). But as Justices William Brennan and Scalia both famously explained, and as poker players (like Kagan) well know, it takes five to win. In specific cases, some portion of the four “wild card justices” can truly be in play. It takes a careful, fact- and case-specific analysis, to determine exactly who and when. On this, Sarah Isgur and I definitely agree. Overbroad generalizations make for convenient sound-bite commentary. But only thorough and precise analysis, focused on each case individually, should satisfy a savvy SCOTUSblog reader. For me, a 2-3-4 “wild card court” analysis allows for just that.
Meanwhile, a narrow and simple solution for Blanche v. Lau.
After listening to the April 22 oral argument in Blanche v. Lau (previewed last month), I think there is a narrow and easy solution, albeit unsatisfying (as prudential decisions often are) to both sides.
Mr. Muk Choi Lau became a lawful permanent resident in 2007. Once a non-citizen is granted LPR status, they have a statutory right to leave the country and come back in without further restrictions (it’s in subsection (a)(13)(C) to 8 U.S.C. 1101 – you have to hunt for it). But there are six exceptions to that subsection, one of which (sub-subsection (v)) is if the LPR “has committed“ certain criminal offenses. When Lau arrived at New York’s JFK airport after a trip to China, an immigration officer found in an FBI database that he had been criminally indicted for felony trademark counterfeiting in New Jersey. With that information, the officer did not give Lau the usual LPR “strings free” admission but instead allowed him in with “parole” (temporarily presence in the country) pending a further determination. When Lau later pled guilty to the New Jersey offense, the government instituted full removal proceedings. Lau now claims that he should not have been paroled at the airport but rather admitted without restriction, arguing that the officer did not have, at that moment at the airport, “clear and convincing” proof that Lau had committed an offense. The U.S. Court of Appeals for the 2nd Circuit agreed with Lau, and here we are.
The official QP (question presented) in Lau is “[w]hether, to remove a lawful permanent resident who committed an offense listed in Section 1182(a)(2) and was subsequently paroled into the United States, the government must prove that it possessed clear and convincing evidence of the offense at the time of the lawful permanent resident's last reentry into the United States” (I have emphasized “at the time of”). The nub of the case is whether the immigration officer first encountering Lau at JFK airport had sufficient information to decide – at that very moment – that Lau had committed a disqualifying criminal offense and thereby deny him a normal LPR entry and instead parole him into the United States for later removal proceedings. At oral argument, the justices swirled for 90 minutes around various proof standards, legal interpretations, and hypotheticals. The government conceded a “clear and convincing” standard for later removal of a non-citizen but then moved to lesser standards such as probable cause or “to the satisfaction of the officer” for the moment of border reentry. The QP is arguably unclear on this timing point, and the arguments and the justices seemed (to me) to grow increasingly confused about a clear resolution.
Early in the oral argument, Alito chided Assistant Solicitor General Sopan Joshi for “swinging for the fences,” that is, asking for a low, or even no, standard of proof for the officer’s decision. I think Alito was right. There is a simple, case-specific way to resolve this case, without trying to state broad rules unnecessary to decide Lau’s case (called “dicta” by some). The court could simply say that, absent some bad faith, a pending felony criminal charge is sufficient for officers at the moment of entry to deny a regular LPR admission. This rule would satisfy neither the government (which wants a universal and less certain standard) nor Lau (who would lose on his individual facts). But it would be clear for the many cases that do involve discovery of pending criminal charges, and yet not require the justices to speculate about other situations that theoretically may arise but are neither presented nor factually developed. There is no need to invent (and harshly disagree about) a proof standard that is not statutorily specified when a clear rule can be seen here.
In other words, when an officer at the border learns from a database that an LPR standing before him has been charged with a felony criminal offense, that should be sufficient for the officer to preliminarily parole the LPR into the United States with notice to appear for a later immigration law resolution.
This makes sense as a matter of criminal law: as Joshi later explained to Thomas, the decision to charge a criminal offense, made in good faith, means that the government believes it has proof sufficient to convince a jury of guilt beyond a reasonable doubt. Or as the ABA’s criminal justice standards (section 3-4.3) states, “A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes ... that admissible evidence will be sufficient to support conviction beyond a reasonable doubt.” A serious criminal charge is generally accepted as satisfying formal evidentiary standards such as “clear and convincing” or “probable cause” for a search. It is also generally sufficient to indict and arrest and hold persons without bail (citizens and non-citizens alike). That should also be sufficient here.
There is no need to go beyond that in this case, nor is there any need to adopt vague and often disputed proof standards applied in different varieties of formal legal proceedings. Absent bad faith or a reason to think that a felony criminal charge might be wrong, simply knowing that there is a presumptively valid pending felony indictment should be enough. Immigration officers are confronted with thousands of LPR reentries at dozens of domestic airports and borders every day. This one involved an undisputed felony indictment. The court ought not try to state more definitive rules for every LPR scenario, when less reliable and beyond-the-record here hypothetical situations are not concretely presented.