Supreme Court Criminal Law Roundup: A Look Back and a Look Ahead

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome all to The Federalist Society's Teleforum Conference call as this afternoon, October 20, 2020, we're taking a look at "Supreme Court Criminal Law Roundup: A Look Back and a Look Ahead." My name is Nick Marr. I'm Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that expressions of opinion on today's call are those of our experts.

 

And we're grateful to have with us today two experts. The first one we've got is Matthew Cavedon. He's an Assistant Public Defender at Northeastern Judicial Circuit. We also have Dean Mazzone. He's Senior Trial Counsel, Massachusetts Attorney General.

 

After our speakers give their opening remarks, they're both going to cover some different cases, and once they exhaust that part of the call, we'll go to audience questions. So be thinking of those. Have those in mind for when we get to that portion of the call.

 

All right. Thanks for being with us here today. Matthew, he's going to go first. The floor is yours now.

 

Matthew Cavedon:  Good afternoon and thank you for that kind introduction. We're going to discuss -- I'm going to discuss four different cases today, three of which are a pretty deep dive into legal history and one of which might be full of some surprises.   

 

First off, let me discuss Kahler v. Kansas. That was a U.S. Supreme Court case this past term. For hundreds and hundreds of years now, the issue of mental illness and criminal law has garnered the attention of judges and commentators. Back in the Middle Ages, for instance, defendants could be spared severe punishments if they were shown to be no more capable of intellect than a brute, in the words of medieval language.

 

As modern information about psychology has advanced, the philosophy around the law and mental illness has changed as well. Anybody who's been to law school probably remembers the M'Naghten test, a famous test from England in the middle of the 1800s which allowed for acquittals of defendants if they could show that they did not know right from wrong at the time of their actions.

 

Other approaches have focused on whether or not somebody is cognitive enough to be aware of what they're doing, is acting under an irresistible impulse, so on and so forth. Kansas, a few years ago, took a different approach and stopped allowing full blown exonerations, that is full blown acquittals, based on insanity.

 

Simply showing that you didn’t know right from wrong is not enough under Kansas law as it exists today to get off from a crime. Instead, you have to show that a mental illness defeated your ability to form the intent required for a crime.

 

That means that there is no longer any defense based on your inability to tell right from wrong, and, indeed, the presentation of psychiatric evidence is limited to going to your subjective intent for committing a crime.

 

Kahler's case arose when the defendant shot his estranged wife, two daughters, and wife's grandmother and ultimately received the death penalty after being barred from presenting evidence that he didn't know right from wrong at the time. Looking at his appeal, the Supreme Court decided 6-3 that there was no due process violation.

 

The majority opinion was written by Justice Kagan. And as I mentioned, it was a deep dive into history. She looked at hundreds of years of development in the treatments of mental health by criminal courts before ultimately finding that the due process clause does not require American states to introduce any particular test or to treat psychiatric evidence in any particular way.

 

The Court began by noting that contrary to the party's arguments, Kansas did not in fact abolish the insanity defense or rule all psychiatric evidence off limits. All that it did in actual fact, she found, is allow no evidence as to moral irresponsibility, the inability to tell right from wrong.

 

Based on that, this was within the range of options permitted to the states. Turning back to the concept of a laboratory of democracy where each state is allowed to try different solutions to social problems, the majority held that Kansas' approach was consistent with history and with the outer bounds of the due process clause.

 

Justice Breyer, joined by Ruth Bater Ginsburg and Justice Sotomayor, did dissent. Looking at the same history, they believed that a full-blown acquittal had to be allowed based upon insanity alone. And with that, I will turn things over to Dean for the next case.

 

Dean A. Mazzone:  Okay. Thank you very much, Matt. Again, my name is Dean Mazzone. I'm the Senior Trial Counsel in the Criminal Bureau of the Massachusetts Attorney General's Office. And I know Nick said this, but I'll just reemphasize that anything I say now is strictly my own opinion and not an opinion of the Attorney General of Massachusetts. But, Nick, thank you for having me.

 

      And I'll start with a case from last term as well which got some notoriety, which is Kelly v. United States, which is the infamous Fort Lee, New Jersey bridge case, which some of you may recall in September of 2013, traffic ground to a halt in Fort Lee, New Jersey. And the cause was an unannounced realignment of 12 toll lanes leading to the George Washington Bridge, which was an entry way into Manhattan, administered by the Port Authority of New York and New Jersey.

 

      It was unannounced. Three dedicated lanes that went from Fort Lee into Manhattan got reduced to one lane, and it caused huge havoc. The public officials ordered that change claim that they were reducing the number of dedicated lanes to conduct this traffic study. But as it turned out, they did so for political reasons, to punish the Mayor of Fort Lee for refusing to support the New Jersey Governor's reelection bid.

 

      Sounds awful, and as the Court held, it was not a good reason to close the lanes. A vindictive political act, however, is not necessarily a federal crime. Two defendants were indicted, violating the federal wire fraud statute, which prohibits a deceptive scheme for obtaining property using federal wires and trying to obtain property from a federally funded program deceptively, that being the Port Authority of New Jersey.

 

      Again, this was retaliation for a political slight, or so the governor's office of New Jersey saw it. And the Court held, in a unanimous opinion however, that where the act, although it was not a good thing and the Court was quite clear on that, nothing admirable about it, it wasn't a crime because there was no property fraud at issue. That is, there was no evidence that any property or attempt to steal actual property from the government was contemplated by the scheme or was the purpose or object of the scheme.

 

      In fact, to the contrary, it was pure retaliation and a regulatory act by the government that was not criminal. The opinion was written by Justice Kagan, again, for a unanimous court. And it's another in a line of cases where the Supreme Court has in opposition to past cases refined the federal criminal corruption laws such that they made clear that bad acts on the part of local governments doesn't necessarily mean it's a federal crime.

 

      The government in this case, the federal government said no, no, they were trying to steal property. That is, they basically commandeered, when they closed off these extra lanes, that was kind of a taking, they argued. And they also argued that because they had to pay toll collectors to watch the single lane that was open and had to pay extra for the toll collectors who would relieve the single toll collector, that that was all property from New Jersey that was obtained unlawfully.

 

      But the Supreme Court said no, no, no. That wasn't the purpose. If you had or if the government had commandeered -- first of all, they didn't take the lanes. The lanes were just there. They closed them. And as for the employees, that was an incidental result of the scheme which was just to close the lanes. There was no pecuniary purpose. No one wanted to take money -- if a government took employees on work time and say their boss made them paint his or her house. That would be a federal crime because the point is the politician is benefitting from the work that the government employees are doing. That's a paycheck. That's money that's really going into the pocket of the employer, the public employer.

 

      But that's not what happened in this case. And I'll just finish out by quoting Justice Kagan, again, for a unanimous court. And this is in line with recent cases. "Federal prosecutors may not use property fraud statutes to set standards of disclosure and good government for local and state officials. Much of governance involves (as it did here) regulatory choice. If U.S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision, the result would be a sweeping expansion of federal criminal jurisdiction.

 

And if those prosecutors could end-run our cases just by pointing to the regulation's incidental costs," in this case the employees working on a fraudulent traffic study, "the same ballooning of federal power would follow. And the federal government could use the criminal law to enforce its view of integrity and broad swaths of state and local policymaking."

 

      So that's Kelly v. United States. And I'll hand it off to Matt.

 

Matthew Cavedon:  The next case is Ramos v. Louisiana. Turning again to history, from the 1300s until the late 1800s, courts in America and in England, as time progressed, held that a conviction can only be had if the jury is unanimous in finding guilt. That is pretty much the only fact that you need to know in order to guess how the U.S. Supreme Court ruled when it faced a challenge to Louisiana and Oregon's laws allowing for non-unanimous jury verdicts.

 

      Louisiana was the state at issue in Ramos. In 1898, the United States Senate started looking into the possibility that Louisiana was constructing its juries in a racist way, excluding black citizens from serving as jurors. The state held a constitutional convention that year with the explicit aim of re-entrenching white supremacy and white rule. They amended the constitution to allow for non-unanimous verdicts, figuring that even if black people had to be allowed onto juries, as long as they could be outvoted, nothing would change.

 

      Louisiana's Constitution has been reamended several times since and reenacted with the same language. But nevertheless, the historical evidence that racism was the guiding impulse for that amendment originally was very clear.

 

      Fast forward to 1972, Apodaca v. Oregon. Oregon also under Ku Klux Klan influence that allowed non-unanimous jury verdicts. That was challenged at the U.S. Supreme Court in 1972. There was a split decision. The determining vote came from Justice Potter Stewart, who gave a concurrence focusing on real-world results and difficulties in unanimous jury requirements and on his very unique theory that the Bill of Rights applies differently to federal governments as opposed to The States.

 

      Revisiting this issue now, 50 years later, in 2019 -- 2020, I apologize. It's been a long year, as some of you may have noticed. Justice Gorsuch wrote an opinion for, once again, a split Court, not a majority, but for a plurality of the Court. He said first off, Justice Stewart's theory of a dual track application of the Bill of Rights never got off the ground. It was his own particular view.

 

It was not adapted by most of the Court, therefore, that's actually not the controlling logic from Apodaca. And in fact, Apodaca has almost no precedential value. Therefore, given a clean slate, the Court could easily look at the history and say that a unanimous jury requirement is an enshrined right within our system of law.

 

      Justice Sotomayor agreed, found that stare decisis does not apply and really highlighted that Louisiana and Oregon had very strong racial reasons for adopting these provisions in the first place. Justice Kavanaugh also concurred. He gave a specific test for stare decisis, finding that Apodaca actually didn't need to be overruled but finding that there were significant reasons for it and finding that even if a couple thousand convictions in Louisiana and Oregon had to be revisited, first, there would not be any retroactive application of the Court's decision in Ramos, meaning older decisions couldn't be challenged and two, finding that states just might have to eat the cost for violating people's rights for all these years.

 

      That retroactivity issue is actually coming up now in the new Supreme Court term with Edwards, a case that the Supreme Court has agreed to review, with somebody asking whether or not the rest of the justices will go along with Justice Kavanaugh or whether old convictions that were obtained after non-unanimous jury verdicts can be challenged.

 

      Justice Thomas wrote a concurrence, finding that due process is not the right way to analyze these kinds of questions. It should be the Privileges or Immunities Clause. Anybody who's familiar with Justice Thomas's take on constitutional issues knows that this is not an issue he's raised numerous times.

 

      Lastly, though, there was a three-way dissent from Justice Alito joined by Chief Justice Roberts and Justice Kagan. They found that, indeed, Apodaca was wrongly decided but that stare decisis required upholding it anyway. They also found that because the provisions in question had been reenacted over and over again as the state constitutions were amended, the racist history simply fell further and further back into the past. That dissent was also highly concerned that overturning thousands of convictions would really mess with states' proper authorities.

 

      So a good opinion worth reading if you're interested in stare decisis and how controversial, long-standing precedents at the U.S. Supreme Court might change depending on how the Court views the rightness or wrongness of the decisions. I don't think I need to say much more to point out what cases might be implicated by Ramos's analysis.

 

Dean A. Mazzone:  And I agree that -- I read Ramos very closely. This is Dean Mazzone. And it's an excellent, excellent case to read just for the back and forth between the majority and dissent. So it's an outstanding case.

 

      Now, for a little more mundane topic and back to the State of Kansas, the case is Kansas v. Glover, which is a straightforward and seemingly mundane but when it comes to criminal cases in the United States, a fact that arises again and again and again in a very discreet, somewhat narrow legal issue that gets answered by the Supreme Court in an 8-1 decision that I'm sure will be relied on throughout the country for a long time.

 

      Justice Thomas wrote the majority opinion, and this is what he writes. "The case presents the question whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle's license plate and learning that the registered owner has a revoked driver's license. We hold that when the officer lacks information, negating an inference that the owner is the driver of the vehicle, the stop is reasonable."

 

In this case, Kansas, the State of Kansas, charged Charles Glover with driving as a habitual violator after the traffic stop revealed that he was in fact driving with a revoked license. Glover moved to suppress the stop saying it was an unconstitutional stop. And interestingly enough, the parties stipulated to the following facts of the suppression hearing.

 

And I'll just be quick with these. The deputy's a certified law enforcement officer deputized by Kansas. He was on a routine patrol in 2016 when he observed a 1995—let's see what kind of car it was—a 1995 Chevrolet Pickup Truck with Kansas plates. He ran the plate through the Kansas Department of Revenue's file service, and the registration came back to the same pickup truck. Files indicated that the truck was registered to Charles Glover, who's the defendant, and they also indicated that Mr. Glover had a revoked driver's license in the State of Kansas.

 

The deputy assumed that the registered owner was also the driver. He observed no traffic infractions and didn't attempt to identify the driver of the truck. Based solely on that information that the registered owner of the truck had his license revoked, the deputy stopped the car. And the driver was in fact identified as Charles Glover.

 

That very discreet issue was what this whole case was about and what the Supreme Court talked -- and again, to some seasoned practitioners, it's kind of an aha moment. That is, is it reasonable to infer that the registered owner is in fact driving his car, and/or pickup truck as the case may be?

 

And the Supreme Court in an 8-1 decision said yes. It is reasonable. Before initiating the stop, the deputy observed the person driving the pickup truck. He knows that the registered owner had a revoked license and that the model of the truck matched the vehicle. And from these facts, he drew what the Court called a commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.

 

The fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate the reasonableness of the deputy's inference. Such is the case with all reasonable inferences, and the reasonable suspicion inquiry falls considerable short of 51 percent accuracy. So even though the rejoinder to this is well, other people drive other people's cars all the time. It could be a family member, a friend he could've lent it to. You don't know for sure that the person driving that vehicle is in fact the owner.

 

And it's not a question of whether you know for sure. The only question to ask is whether it's reasonable to infer that the owner is the present driver and can't be driving that car and is committing a crime by doing so and thus can be stopped. And that's what the Court held, again, 8-1 in a very straightforward decision by Justice Thomas which relies on what I tell juries is their most important faculty: commonsense. The commonsensical observation, police are free to make it.

 

Now, there's always these issues lurking -- there's probably these issues lurking in the background of this case which is maybe why it was taken by the Supreme Court about profiling and other issues, but the Court was quite clear that that justification, that reasonable inference is a solid basis for a police officer to stop a car.

 

There was a concurrence, a very thoughtful concurrence, by Justice Kagan where she says she agrees with the Court that it's a reasonable inference, but she notes that there are other things could happen where this reasonable inference could be defeated in cross-examination. If the police officer actually notices that the person driving is, say, a female and the registered owner is an elderly male and the person driving is a young female, that may defeat the reasonable suspicion that the person driving is in fact the owner.

 

And statistics may help as well. And this is all fodder for a defendant in a motion to suppress. He could defeat the inference. There was a single dissent by Justice Sotomayor, also thoughtful, where she just basically says that it's not necessarily a reasonable inference under the circumstances, especially where police, with their experience and training, know there are many reasons why it may not necessarily be the owner of the pickup truck who's driving at that moment.

 

So that's Kansas v. Glover.

 

Matthew Cavedon:  Next up is Vance v. Trump. In the mad rush of the election year, it may be hard to remember what last year's large political controversies were. But New York's Attorney General did at one point subpoena President Trump's tax returns.

 

      That caused a major battle over whether the subpoena could be quashed and whether President enjoyed immunity from state criminal subpoenas. Once again, the Court turns into history and does a thorough survey the past couple of hundred years, not pausing for a Court that boasts of its originalist credentials.

 

      Chief Justice Roberts writes the majority opinion, looks all the way back to the early days of the republic when Aaron Burr, remember the bad guy from Hamilton the Musical, was on trial for treason. He subpoenaed for his defense documents from President Jefferson that dealt with diplomatic relations with Mexico and the possibility that Burr was going to attempt a coup against the government down there. I believe it was still the Spanish Government.

 

      Chief Justice Marshall, at the time, upheld the subpoena but refused to force President Jefferson to come any time the subpoena beckoned him, citing that the Courts had to pay attention for the realities of the presidency and respect the President's ongoing duties as part of separation of powers.

 

      For about 170 years after that, the Branches mostly worked out cooperatively, criminal discovery involving the Executive Branch. And then came the major controversy of the Nixon tapes, where the President attempted to block production of his tapes in a federal criminal case.

 

      The Supreme Court there held that indeed, a president can be subject to subpoenas for documents and other information as part of a criminal investigation. Here, the only question, according to the majority, was whether state proceedings are any different. The Court held that they are not. There is no absolute immunity for the President from having to comply with criminal subpoenas.

 

Undue interference with the President's functioning is barred, and courts can certainly step in if a subpoena appears to be just aimed at political harassment. But there's no special showing beyond the general rules that apply to subpoenas that take into account whether or not a witness would be unduly burdened by having to produce documents in response.

 

Once again, several different concurring opinions and one dissent. Justice Kavanaugh, joined by Justice Gorsuch, held that the Nixon case established a demonstrated specific need test where the government has to show why it can't get the sought information any other way.

 

Justice Thomas, together with Justice Alito, agreed that there is no presidential immunity from subpoenas being issued but did hold that there can be immunity from having to respond or answer a subpoena and urged courts to look at both the burden on the presidency and the degree to which the Executive Branch would be under judicial scrutiny if subpoenas were upheld.

 

Now, all three of these opinions propose different tests. How exactly they differ is not 1000 percent clear. We'll see if more and more officials attempt to subpoena presidential documents in the years to come.

 

The only real outlier opinion is Justice Alito, who in a separate dissent held that there is a heightened standard that has to be shown before presidential documents can be required like this and held that the Supreme Court should've found on its own that New York failed to meet that standard here and rather than a remand should've simply quashed the subpoena.

 

Dean, back over to you.

 

Dean A. Mazzone:  Yes, sir. Excellent summary of an extremely important case.

 

      The next case from me that I think is most important and was just argued in the Supreme Court about a week ago is Torres v. Madrid, which is an interesting case for those interested in, again, stare decisis and originalism and how the Court of today would view a decision of the Court from not too long ago and how the Court of today would view decisions from hundreds of years ago.

 

      So for all us legal nerds in line with all the other cases, this case gives us quite a potpourri of legal issues. The facts of the case in Torres v. Madrid, which sent us on a 1983 civil rights suit on a criminal case, per say, but a case with criminal implications, is that early in the morning of July 15th of 2014, the New Mexico State Police went to an apartment in Albuquerque to arrest a woman named Kayenta Jackson, who is involved with an organized crime ring.

 

      The officers saw two individuals standing in front of the woman's apartment next to a Toyota Cruiser. The Cruiser was in a parking spot with cars parked on either side of it. The officers were wearing vests with police markings, and they decided to make contact with the two individuals.

 

      As the officers approached the Cruiser, one of the individuals ran into the apartment while the other individual, Torres, got inside the Cruiser and she started the engine. At the time, Torres was admittedly had been using drugs for several days, so she was tripping out, as she said. One of the officers approached the driver side window and told Torres several times to show her hands, and she noticed that -- or the officer noticed that Torres was making furtive movements and he couldn't really see what Torres was doing.

 

      Another police officer took up position on the other Cruiser's driver side front tire and she couldn't see the driver, but she could tell that the driver was making some aggressive moves and before they all knew it, they heard the car door slam, heard the car engine start. Torres put the car into drive. One of the officers brandished his firearm. The other officer brandished her firearm. Torres stepped on the gas, and as soon as the Cruiser creeped a couple of inches, one of the officers shot at Torres and fired at her through the windshield to try to stop the driver, that is Torres, from running her over.

 

      Officer Williams -- one of the officers testified that he shot at the driver because he was afraid he was going to get crushed by the Cruiser. Two bullets struck Torres, but she continued forward, driving over a curb and onto another street, collided with another vehicle, got out of the Cruiser, laid on the ground for a minute. She thought, according to her testimony, that she was being carjacked. She testified she didn’t know they were police officers.

 

      She was still under the influence of drugs. She stole another car while the police were trying to apprehend her and then drove 75 miles to Grants, New Mexico, with two bullet wounds in her. She was arrested, but she then followed up with a civil rights suit claiming that the officers used excessive force under the Fourth Amendment.

 

      And now, we come to the legal issue after that fun and exciting car chase scene of a cop movie. The issue was whether there was a Fourth Amendment violation at all because as we know, the Fourth Amendment provides that there shall be no unreasonable searches or seizures. And whether or not a person who police are attempting to apprehend and actually shoot and hit but who never submits keeps driving away such that she escapes the police, the Tenth Circuit in the circuit court, the lower court, ruled that in fact there was no seizure so there couldn't be a Fourth Amendment violation as a matter of law.

 

      And interestingly enough, when it arrives at the Supreme Court, Torres's complaint is a good one which is that in 1991, the Supreme Court in California v. Hodari D., which at the time—now I'm showing my age—was a pretty important opinion regarding search and seizure. The Court had defined seizure as a laying on of hands or application of physical force to restrain movement even when ultimately unsuccessful.

 

      Now, whether or not that was the holding of Hodari D., meaning it was absolute law or just dicta, was something that was hotly contested before the Supreme Court. And whether or not a seizure has occurred in the circumstances of Torres's case where police are attempting to subdue -- and I won't get into the -- attempting to subdue Torres but fail because she gets away even though they shoot her, is an interesting question that may be disposed of by Hodari D. depending on whether or not the Court sees Hodari D.'s observations as to what a seizure is as law or a law that should be followed and whether -- or simply dicta, that can be dispensed with as dicta.

 

      The other interesting wrinkle is that this is -- Hodari D. is a great case to read as well because a very scholarly opinion by Justice Scalia back in the day. And it was an originalist opinion about what the Fourth Amendment meant at the time of the Founding and whether the seizure under the common law at the time could be defined as the mere grasping or application of physical force with lawful authority whether or not it succeeded in subduing the arrestee was in fact sufficient to constitute a seizure.

 

      So that issue is before the Court on this specific -- obviously, just like the Kansas v. Glover opinion, search and seizure is at issue. Although, it's in the context of a civil case and so is how the Court treats prior precedent and an originalist opinion by Justice Scalia.

 

      So that's Torres, and with that, I'll hand it off to Matt.

 

Matthew Cavedon:  Okay, and last but not least, thinking on something a little bit different after all this historical analysis, we have the upcoming Supreme Court case of Jones v. Mississippi. You may remember a couple of years ago, the Supreme Court decided a case called Miller v. Alabama. That case held that no state can mandatorily require life without parole sentences for juveniles. Of course, the death penalty is already off the table for juveniles.

 

      The Supreme Court held that there has to be some kind of individual analysis of a juvenile before a juvenile can be sentenced to life without parole. That was an opinion by Justice Kagan, with dissents by Chief Justice Roberts and then Justices Scalia, Thomas, and Alito.

 

      A few years after that in Montgomery v. Louisiana, the Supreme Court held that its decision in Miller was a substantive decision, that it affected a substantive area of law, specifically that it held that juveniles are not normally as a class subject to life without parole sentences unless they fall within the rarest class of "permanent incorrigibility," as reflected in their crimes.

 

      What that meant was the Miller decision could apply retroactively. Remember, that's also an issue that's going to come up in Ramos. Now, the Supreme Court is being asked to decide whether or not the incorrigible corruptibility test requires a specific finding by a judge before a juvenile is sentenced to life without parole.

 

      Montgomery, by the way, featured a different split than did Jones v. Mississippi. Chief Justice Roberts had been a dissenter in the Miller case. In Montgomery, he joined the majority. After Montgomery, six state supreme courts, including my home state of Georgia, as well as the Fourth Circuit Court of Appeals, have said that a juvenile life without parole sentence is invalid unless a judge makes a specific finding about permanent corruptibility, about the inability to rehabilitate a juvenile.

 

      Four state supreme courts and the Ninth Circuit had held that judges do not need to make such a finding. That's what the question is now before the Court is whether the judge basically has to look into a crystal ball, take a look at the crime, take a look at other personal factors, and decide whether this is truly a permanently unredeemable youth or not.

 

      We'll see how that comes out. I will note something a bit surprising which is that the split on this did not appear to be a straight partisan split. Interestingly, in the Ninth Circuit, the majority opinion was written by Judge Johnnie Rawlinson. That's a Bill Clinton appointee. The dissenter on the panel was Diarmuid O'Scannlain, one of the most prominent conservatives on that Court.

 

      Meanwhile, among the states that have held that there has to be a specific finding, Georgia, which has a Republican majority appointed Supreme Court. Among the state supreme court holding that there does not need to be any specific finding, Washington State, which at least, if I remember correctly, is dominated by Democratic appointees.

 

      This may actually be a place where concerns about interpretive method and textualism are driving more of the issue than policy outcomes. We'll see what the Supreme Court makes of it but nevertheless, this very hotly evolving area in juvenile law of what is required before a juvenile can be sentenced forever to life in prison is going to receive a significant new impulse.

 

And I'll note, Justice Gorsuch, Justice Kavanaugh, and whoever winds up taking Justice Ginsburg's seat will not have been on the Court for the last two decisions. So there could be all kinds of wild cards to come as well. We'll see whether a more originalist approach also reemerges instead of the more psychology-based focus on juvenile development that's predominated so far.

 

With that, those are the cases I've been assigned. Dean, unless you've got one more hiding in the wings there, I think we're almost ready for questions.

 

Dean A. Mazzone:  Almost. I do have one hiding in the wings, although it's not hiding for you, Matt, but I just want to briefly flag it. And I'll take one minute.

 

      The case is Van Buren v. the United States, and it's going to be argued at the end of November. And it concerns the Computer Fraud and Abuse Act. And this has been an issue that's been percolating in the circuit courts for a long time. This case comes out of the Eleventh Circuit. And I'll just briefly mention what the facts are.

 

      A police officer received a bribe to run a background check, that is use his work computer, to run a criminal background check on a woman who worked at a gentleman's club, let's say, to see whether or not the woman was an undercover police officer.

 

      Of course, the person who bribed Van Buren was working with, cooperating with the FBI. So it was a sting. Van Buren was caught, and the question was whether under the Computer Fraud and Abuse Act, which criminalizes using a computer without authorization or exceeding authorized access of a computer, whether or not that was covered by Van Buren's act.

 

      Now, the argument is that he did in fact -- he was not authorized to use the computer in that way. It was not for a business purpose. It wasn't for his professional duties. That's what the Eleventh Circuit held. Whether or not he was authorized to access the computer, which he was, he wasn't authorized to use it for that purpose.

 

      And one issue that's been floating around with this statute for a long time is whether or not anybody who uses a computer, an office computer or a website, they're accessing a website that we all do every day in all kinds of ways, is not strictly following the terms of use is in fact exceeding the authorized access. That is we have to read what the terms of use are and do everything. We can't check the weather on our work computer. And also, it's a parades of horribles are easily imagined and have been brought up to the Supreme Court numerous times and especially in extensive amicus briefings in this case.

 

      So Van Buren v. the United States, exceeding authorized access, whether that's a crime under the Computer Fraud and Abuse Act will be determined by the Supreme Court this term. And I think we have to look at it in line of the Supreme Court narrowing a lot of these statutes that can be broadly construed by prosecutors.

 

      And with that, I'll hand it and open it up to questions.

 

Nick Marr:  Great. Thanks to you both. I'll give our audience here a couple moments here to line up. Thanks to you both for that comprehensive review. I'll start with a first question. Do you see, on these couple of new cases that you both just covered at the end there, do you anticipate a -- Matthew, you mentioned, it's not a partisan split across the country.

 

Do you see any interesting majorities shaking up or unanimous decisions maybe in these kinds of cases? Do you know if -- you've mentioned now Justices Kavanaugh and Gorsuch are new and potentially whoever takes Ruth Bader Ginsburg's seat would be new. Have they written anything in lower courts that might help you come up with something about this? Just if you could speak a little bit to that.

 

Matthew Cavedon:  Sure. Certainly. I do not see any kind of unanimous opinion coming out on this. I think that there is a very strong divide between folks who are still somewhat upset that juveniles are treated as such a special class for punishment purposes under the Constitution and other folks who are appalled at the possibility that somebody could look at a 16 or 17 year old and say that you are never going to be fit for society, just given brain development and so on and so forth.

 

      I think that that gulf is simply going to remain. It's very hard to imagine, unless there's some sort of procedural copout, that Justices Thomas and Alito on one side and Justice Breyer or Justice Sotomayor on another are going to find common ground on the ultimate outcome here.

 

      As far as lower court opinions go, I will say I haven't done a thorough survey of the lower decisions. The six states and four states and Fourth Circuit and Ninth Circuit that uphold were all from the cert petition itself. I don't know if there have been additional opinions in the past couple of months that may have changed the equation there.

 

      Neither the Fourth Circuit nor the Ninth Circuit, obviously, is home to any of the justices in question who are new on the Court, so I don't see much room to find much in the tea leaves there as far as how they might vote on this. I'm not personally all that aware of any opinions that they've written that would be on point.

 

And in fact, Justice Kavanaugh, having sat on the D.C. Circuit, which very rarely would deal with a blue-collar crime of the sort, I don't know that there are any occasions. Don't absolutely quote me on that, but I don't know of any particular way to get a sneak peek at what these folks views on that might be.

 

Nick Marr:  Okay. We've got a first audience question here.

 

Caller 1:  Yes. I think that's me. Thank you very much and thank you all. It's really informative, and I really appreciate it. I have a question. It's related to Kansas v. Glover. I guess it would come up in other criminal procedural cases as well relating to the notion that only an objectively reasonable police officer's knowledge is relevant to determining whether there's suspicion or probable cause.

 

      In Kansas v. Glover, toward the end the opinion, the Court is talking about additional facts that could dispel the conclusion that there's reasonable suspicion to pull someone over. And one example they give is "if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties," I'm just wondering how an officer subjective knowledge that a registered owner of the vehicle is of a certain age could or should factor into the analysis whether there's reasonable suspicion or probable cause.

 

Dean A. Mazzone:  I guess that's Dean, that's for me, I would guess. It's an excellent question and let me be sure I understand it. Are you questioning whether that fact -- if the police officer is either -- answer the question on direct or cross examination, did you in fact see -- because in Kansas v. Glover, there was no evidence on the stipulate record that he even could describe who the driver was.

 

But if in fact the question is asked by whomever the prosecutor or defense attorney and the answer is, "Oh, yes. I knew Charles Glover was the owner, but the driver was clearly a female and was about 20 years old." That, if this is the question you're asking, that's what the officer knows at the time, which would make any inference that he draws that the driver is Charles Glover unreasonable.

 

      Does that answer your -- is that what you're asking? So the prosecution would be at a loss at that point, if that's what the officer says.

 

Caller 1:  Yes. I think that's right. And I guess what I'm wondering is if an officer -- let's say the officer happens to know Charles Glover from whatever, arresting him before --

 

Dean A. Mazzone:  Sure, yup.

 

Caller 1:  And that officer has that subjective knowledge as to Charles Glover's age or appearance or whatever it might be --

 

Dean A. Mazzone:  Well, it's not subjective knowledge. It is subjective knowledge, but at that point, if the judge believes him that that's what he knows, then that's a fact that he knows. So it goes into the bucket of the factors that this particular officer knows, right. So go ahead.

 

Caller 1:  I guess I may just have to research that. I just find that confusing if it's what this particular officer subjectively knows, whether that could or should inform the analysis because it was objective.

 

Dean A. Mazzone:  It does. Yeah. Well, I can answer the question -- all right. I think I can answer the question. Everything the officer knows, check the boxes, and one of them is that I know Charles Glover is 65 years old, and I also observed that the driver in fact was not a 65-year-old male but was a 20-year-old female. That is reviewed objectively in that a reasonable officer, knowing those things, would he infer that Charles Glover was driving the vehicle? And the answer would be no. And the motion to suppress would be allowed.

 

Caller 1:  Okay.

 

Dean A. Mazzone:  That's the answer. It's the facts known to the officer in all of these Fourth Amendment cases. It's the facts known to the officer at the time or what the fact finder believes the officer knows. Again, in Glover, he didn't even need -- there was no testimony he had any idea what the driver looked like. But if it came up that he did, then that would go into the objective test. It's still an objective test, but it's based on what the officer knows at the time. So does that answer the question?

 

Caller 1:  Yeah. I think so. Thank you.

 

Dean A. Mazzone:  You're welcome. Good question.

 

Nick Marr:  So, Dean, that -- we don't have any questions in the queue right now. I'll offer a chance for any more remarks or closing remarks if you want to wrap up a little bit early if we don't get any more questions.

 

Dean A. Mazzone:  I can say for a minute or two, and I think I said it towards—this is Dean—I think I said it towards the end of my presentation. You were asking about how there'd be lineups and unanimous opinions. And I think I said it. I think that you will see the Court as a whole in all different contexts narrowing broad statutes when it comes to criminal law. You will see that.

 

And I think, for instance, Kelly was unanimous. I think Thomas and even Alito, who's probably the most pro-government judge in my opinion, certainly Gorsuch would be more aligned with Thomas, are going to see criminal law as that they should be strictly construed and construed narrowly. And that's -- you're going to get, in my opinion, a lot of 6-3's, 7-2's, where they'll come to some kind of agreement on that. That's where the cases have been going and I just see them heading that way and I think Van Buren will end up that way as well. That is the statute will be very narrowly construed. So.

 

Nick Marr:  Interesting. Okay, and we haven't gotten any questions in the meantime, so I'll offer a chance for closing remarks at this point.

 

Matthew Cavedon:  This is Matt. If you want to win a Supreme Court case by and large at this point, do your history research. Dig into things like how mental illness was treated in the 1200s. Look back at medieval English requirements for jury verdicts. Really doing that hard work and showing consistent patterns throughout American history can have a serious impact on how persuasive your arguments are.

 

      In addition, don't shy away from calling a state out if you believe that you have found a practice that steeped in racism. That's very clearly the lesson of Ramos v. Louisiana where two states that had racist fingerprints all over their odd law end up coming under very heavy fire from the Court for that. And the Court's very conscious about trying to remove explicit racial history from modern practices.

 

      So those are two practice pointers. I guess the third is if you're dealing with anything around juveniles, maybe ignore the part about history and just really drill into the science. The Court has proven very receptive to arguments just based on the categories of youth based on characteristics of juveniles as they develop over time. So don't shy away from that.

 

      Otherwise, don't expect that there's going to be a whole lot of unanimity on criminal issues. And don't expect that it's necessarily going to be the 5-4 of the conservatives on one side and the liberals on the other. We're seeing places where, again, Justice Kagan is finding that there's no right to a unanimous jury verdict. Justice Gorsuch is finding that the president's not immune from subpoenas.

 

There is some real room for give and take here and even on the 6-3, 7-2, 8-1 decisions, who fits into those boxes is not a million percent predictable. We'll see if that continues or if, again, fresh blood on the Court winds up causing some redrawing of the lines.

 

Nick Marr:  Dean, anything to add?

 

Dean A. Mazzone:  No. I agree with most of that. I would say if you're -- especially with the history, it makes a fun reading, but it's a little intimidating so get your history right, especially with Gorsuch and Thomas on the Court. There's a lot of scholarship there. So it should be an interesting term.

 

Nick Marr:  Very good. All right, thanks to both for joining us. And on behalf of The Federalist Society, I want to thank you for the benefit of your valuable time and expertise today and to the audience for calling in. And as a reminder to you, as always, we welcome listener feedback by email at [email protected].

 

And be checking our website and your emails for announcements about upcoming Teleforum calls and about our upcoming National Lawyers Convention, which is coming up in a few weeks here. So go check out on our website how you can register for that. All right. Thank you all for joining us this afternoon. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.