June 20, 2013 United States Supreme Court opinions

Descamps v United States

Descamps’ felon in possession sentence was enhanced based on the district court’s determination that his California burglary conviction, which is an indivisible statute with broader scope than generic burglary, was a predicate offense. The 9th Circuit affirmed holding sentencing courts may look at the facts of conviction when a criminal statute is broader than the generic crime of burglary. The Court, 8-1 with one justice concurring in judgment, resolved a circuit split and reversed. The majority held that when a statute is broader than the generic version of the crime, sentencing courts may not look at the facts supporting a conviction. Instead, those courts must limit their analysis to elements in the statute and if the crime is broader than the generic version, it is not a predicate offense. The majority rejected the 9th Circuit approach as inconsistent with the career criminal statute’s text, raised serious Sixth Amendment concerns as it allows judicial fact-finding instead of jury fact-finding and would consume judicial resources as sentencing courts attempted to determine whether decades old convictions were or were not generic burglary. The federal government alternative of allowing factual review when the statute has an overbroad element was also rejected on the same grounds with added ground that over inclusive statues could also be characterized as missing an element of the generic crime demonstrating there is no principled way to apply the suggested approach. Justice Kennedy added a concurrence observing that the consequences of guilty pleas on later career criminal sentences are not considered by defendants and this outweighed in his mind the pressure now put on states to revise their statutes to allow their convictions to be counted for career criminal sentencing purposes. Justice Thomas concurred in judgment arguing that the career criminal sentencing statute violates the Sixth Amendment by allowing judicial fact finding that increases a maximum sentence. Justice Alito dissented arguing for a more practical approach given that the career criminal sentencing statute does allow factual determinations, that allowing sentencing judges to determine what a guilty plea actually admitted is constitutionally permissible, that it is difficult to determine whether a statute is divisible or indivisible and in any event when the record shows that the defendant actually understood he was charged with generic burglary and admits it, there is no reason to allow that person a break because of how the legislature wrote the statute. He also expressed concern that the majority’s approach will create more confusion not less as sentencing judges struggle to determine if a statute is divisible or not. H

American Express v Italian Colors Restaurant

Italian field a class action suit against American Express alleging antitrust violations in its fee structure. American moved to arbitrate the case individually based on the class action waiver provision in the parties contact. Italian opposed the motion arguing its costs to prevail would exceed the award available. The district court granted the motion. But, the 2nd Circuit reversed. The Court, 5-3 with Justice Sotomayor recused, reversed. It held that under the federal arbitration act, class action waivers in arbitration contracts are valid unless Congress has established a contrary policy. Here, the antitrust laws are silent on the matter and the default rule therefore applies. The majority held there is no right to have an affordable means of seeking a remedy only a right to pursue the claim. Justice Thomas added a concurrence stating his view that the plain language of the Federal Arbitration Act required reversal as Italian did not attack contract formation. The dissent argued that the arbitration provision here effectively denies Italian of any forum to enforce the antitrust laws as it may not join or informally pool resources or shift costs to American. Thus, the dissent argued the whole clause violates the effective vindication of federal rights rule and the case should be in court. The dissent concluded that this case is about the majority’s hatred of class actions and its efforts to eliminate class actions as a  viable meads of resolving disputes and that the effect of this case is to shield monopolists from ever having to face consequences for their behavior.

Agency of International Development v Alliance for Open Society International, Inc.

As a condition to receive funds under an anti-AIDS program, 22 USC 7601, recipients must adopt and announce their opposition to legalizing prostitution. Alliance sued claiming this condition violated their First Amendment rights to expression. The district court granted an injunction which was upheld by the Second Circuit. The Court, 6-2 with Justice Kagan recused, affirmed. It held that because the requirement mandates the recipient adopt the government’s position and provides no means for the recipient to act on its own opposing view, the requirement is unconstitutional. The dissent argued that the requirement merely allows the government to identify private parties which support the government position on prostitution which is perfectly constitutional. It also argued the only way the requirement would be unconstitutional is if it coerced recipients to say what the government wants, but, the requirement here does not coerce anyone to do anything.

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