Skip to main content

Neil Gorsuch Sides with Liberal Justices in 5-4 Decision for the Second Time This Week


President Donald Trump’s Supreme Court appointee, Justice Neil Gorsuch, sided with the Court’s liberal justices in a 5-4 decision, the second time this week that happened in a criminal defendant’s case.

Gorsuch delivered the opinion of the court in United States v. Haymond, which Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor joined; Justice Stephen Breyer penned an opinion concurring in the judgement. Justice Samuel Alito, on the other hand, penned a somewhat scathing dissent that was joined by Justice Brett Kavanaugh, Chief Justice John Roberts and Justice Clarence Thomas.

The context:

Respondent Andre Haymond was convicted of possessing child pornography, a crime that carries a prison term of zero to 10 years. After serving a prison sentence of 38 months, and while on supervised release, Mr. Haymond was again found with what appeared to be child pornography. The government sought to revoke his supervised release and secure a new and additional prison sentence. A district judge, acting without a jury, found by a preponderance of the evidence that Mr. Haymond knowingly downloaded and possessed child pornography. Under 18 U. S. C. §3583(e)(3), the judge could have sentenced him to a prison term of between zero and two additional years. But because possession of child pornography is an enumerated offense under §3583(k), the judge instead imposed that provision’s 5- year mandatory minimum. On appeal, the Tenth Circuit observed that whereas a jury had convicted Mr. Haymond beyond a reasonable doubt of a crime carrying a prison term of zero to 10 years, this new prison term included a new and higher mandatory minimum resting on facts found only by a judge by a preponderance of the evidence. The Tenth Circuit therefore held that §3583(k) violated the right to trial by jury guaranteed by the Fifth and Sixth Amendments.

The holding:

The judgment is vacated, and the case is remanded.

Gorsuch wrote that “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.”

“That promise stands as one of the Constitution’s most vital protections against arbitrary government. Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt,” Gorsuch continued. “As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments.”

Gorsuch then cited John Adams to point out that the Founding Fathers believed the right to trial by jury is “the heart and lungs, the mainspring and the center wheel”  of American liberty.

Together with the right to vote, those who wrote our Constitution considered the right to trial by jury “the heart and lungs, the mainspring and the center wheel” of our liberties, without which “the body must die; the watch must run down; the government must become arbitrary.” Letter from Clarendon to W. Pym (Jan. 27, 1766), in 1 Papers of John Adams 169 (R. Taylor ed. 1977).

Justice Alito clearly did not agree with the plurality’s reasoning, writing, that there was not a “constitutional basis” for the Court’s holding. He said the Gorsuch opinion “sport[ed] rhetoric with potentially revolutionary implications”:

I do not think that there is a constitutional basis for today’s holding, which is set out in JUSTICE BREYER’s opinion, but it is narrow and has saved our jurisprudence from the consequences of the plurality opinion, which is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications. The plurality opinion appears to have been carefully crafted for the purpose of laying the groundwork for later decisions of much broader scope.

Although Justice Breyer said in his opinion concurring in the judgement that he agreed with “much of the dissent, in particular that the role of the judge in a supervised-release proceeding is consistent with traditional parole,” he nevertheless agreed “with the plurality that this specific provision of the supervised-release statute, §3583(k), is unconstitutional.”

“Accordingly, I would hold that §3583(k) is unconstitutional and remand for the Court of Appeals to address the question of remedy,” Breyer concluded. “Because this is the course adopted by the plurality, I concur in the judgment.”

Alito went on to say that “This should not have been a difficult or complicated case.”

“I start with the proposition that the old federal parole system did not implicate the Sixth Amendment’s jury trial right. A parole revocation proceeding was not a ‘criminal prosecution’ within the meaning of the Sixth Amendment, and revocation did not result in a new sentence,” he added.

In closing, Alito said that, if the Court is actually laying the groundwork for later decisions as he suspects, this could have “far reaching” and “unfortunate” consequences.

Today’s decision is based in part on an opinion that is unpardonably vague and suggestive in dangerous ways. It is not grounded on any plausible interpretation of the original meaning of the Sixth Amendment, and it is contradicted by precedents that are unceremoniously overruled. It represents one particular view about crime and punishment that is ascendant in some quarters today but is not required by the Constitution. If the Court eventually takes the trip that this opinion proposes, the consequences will be far reaching and unfortunate. For these reasons, I respectfully dissent.

What could those consequences be?

“So, if every supervised-release revocation proceeding is a criminal prosecution, as the plurality suggests, the whole concept of supervised release will come crashing down,” Alito wrote.

It is notable that Alito used the words “unpardonably vague.”

Earlier this week, Gorsuch sided with liberal justices in a 5-4 decision in U.S. v. Davis et al.,writing “In our constitutional order, a vague law is no law at all.”

Gorsuch, who wrote the opinion for the majority, concluded that 18 U. S. C. §924(c)(3)(B)–a law enhancing punishment for those using a gun while committing a “crime of violence”–is “unconstitutionally vague.”

“Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague,” Gorsuch wrote.

Justice Kavanaugh wrote the dissent in that case and, like Alito did today, expressed his belief that the case was not a difficult one.

“A statute is unconstitutionally vague only if ‘it fails to give ordinary people fair notice of the conduct it punishes,’ or is ‘so standardless that it invites arbitrary enforcement,’” he wrote. “Section 924(c)(3)(B) is not unconstitutionally vague. To reiterate, §924(c)(3)(B) defines ‘crime of violence’ as ‘an offense that is a felony and … that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’”

“This case therefore should be straightforward. But the Court complicates things by engaging in a two-step dance that ends with the Court concluding that §924(c)(3)(B) is unconstitutionally vague,” Kavanaugh concluded.

[Image via Chip Somodevilla/Getty Images]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime:

Matt Naham is the Senior A.M. Editor of Law&Crime.