June 10, 2024 | Volume 31, Issue 13

This Report summarizes opinions issued on May 23 and 30, 2024 (Part I); and cases granted review on May 28 and June 3, 2024 (Part II).

Opinions

Alexander v. South Carolina State Conference of the NAACP, 22-807.

By a 6-3 vote, the Court reversed a three-judge district court’s ruling that a South Carolina congressional district was the product of an unconstitutional racial gerrymander. South Carolina is divided into seven congressional districts. At issue in this case were Districts 1 and 6. After the 2020 census, South Carolina needed to redraw its congressional district map because District 1 was overpopulated, whereas District 6 was underpopulated. At that time, the State Legislature was controlled by Republicans, and it was their intent to redraw the districts “to create a stronger Republican tilt in District 1.” (Internal quotation marks omitted.) The Senate retained a long-time nonpartisan staffer to redraw the congressional maps. The staffer “relied on political data from the 2020 Presidential election,” “traditional districting criteria and input from various lawmakers . . . whose recommendations would have preserved the strong Democratic tilt in . . . District 6 . . . and included a version of District 1 with a black voting-age population (BVAP) of 15.48%.” The resulting map (Enacted Plan) differed from the previous one in that it increased the Republican lead in District 1 to 54.39% and moved Democratic-leaning precincts out of District 1 and into District 6. In addition, “[b]y design, the legislature divided Charleston between Districts 1 and 6,” allowing that county to be represented in the House by one Democrat and one Republican. Finally, District 1 now “had a slightly higher BVAP, rising from 16.56% to 16.72%.” After approval by the legislature, the Governor signed it into law.

Respondents, the NAACP and a District 1 voter, sued to challenge the Enacted Plan. Respondents claimed “that Districts 1, 2, and 5 were racially gerrymandered and that these districts diluted the electoral power of the State’s black voters.” The district court, consisting of a three-judge panel, rejected the claims pertaining to Districts 2 and 5. As to District 1, though, the district court held that the state drew that district “with a 17% BVAP ‘target’ in mind and that this violated the Equal Protection Clause. For similar reasons, the court also found that the State’s putative use of race to draw District 1 unlawfully diluted the black vote.” As a result, “[t]he court permanently enjoined South Carolina from conducting elections in District 1 until it approved a new map.” In an opinion by Justice Alito, the Court reversed in part and remanded in part.

To begin, the Court set the constitutional stage. As provided for in the Constitution, state legislatures are primarily responsible for drawing congressional districts. Such an act “is an inescapably political enterprise.” As the Court previously held in Rucho v. Common Cause, 588 U.S. 684 (2019), the Constitution does not prohibit congressional maps that are drawn to achieve partisan ends, for claims of partisan gerrymandering are nonjusticiable. Conversely, because the Fourteenth Amendment prohibits racial gerrymandering (where the “legislature gives race a predominant role in redistricting”), such claims are justiciable. If a resulting map has been racially gerrymandered, it “is subjected to strict scrutiny and may be held unconstitutional.” “These doctrinal lines collide when race and partisan preferences are highly correlated.” The Court has “navigated this tension by endorsing two related propositions. First, a party challenging a map’s constitutionality must disentangle race and politics if it wishes to prove that the legislature was motivated by race as opposed to partisanship.” Second, the Court presumes that the legislature has acted in good faith. This presumption “directs district courts to draw the inference that cuts in the legislature’s favor when confronted with evidence that could plausibly support multiple conclusions.” The Court observed that circumstantial evidence to prove racial gerrymandering is difficult to show, especially where the state’s defense is that it has engaged in partisan gerrymandering. That’s because, “[w]hen partisanship and race correlate, it naturally follows that a map that has been gerrymandered to achieve a partisan end can look very similar to a racially gerrymandered map.”

Applying these concepts here, the Court held that the district court clearly erred in finding that respondents established “that the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” (Internal quotation marks omitted.) To the contrary, it explained, the challengers “provided no direct evidence of racial gerrymander” and their circumstantial evidence was weak because it “relied on deeply flawed expert reports” and failed to provide an alternative map “that achieved the legislature’s partisan goal while including a higher BVAP in District 1.” To begin, the Court discussed the clear error standard of review as it applies in the context of racial gerrymandering cases. It explained that, because “the racial-predominance test . . . has a very substantial legal component,” one “must take account of [the Court’s] prior decisions,” and the Court “must exercise special care in reviewing the relevant findings of fact.”

Next, the Court criticized the district court for heavily relying on four pieces of evidence to infer that the state’s predominant motivation was race. This evidence included: (1) District 1’s relatively consistent BVAP, despite the changes made between the prior map and the Enacted Plan; (2) the Enacted Plan’s movement of more “voters out of District 1 . . . than were needed to comply with the one person, one vote rule” and its fracturing of “Charleston and a few other counties even though avoidance of such splits is a traditional redistricting objective”; (3) the movement of “many predominantly black Charleston precincts . . . out of District 1 and into District 6”; and (4) the fact that the mapmaker and other staffers viewed racial data at some point during the redistricting process.” Such heavy reliance, the Court explained, “was seriously misguided in light of the appropriate legal standard and [its] repeated instructions that a court in a case such as this must rule out the possibility that politics drove the districting process.” Indeed, for each of these four pieces of evidence, there was either strong evidence that it “was simply a side effect of the legislature’s partisan goal” or, where there was no evidence to contradict that possibility, the legislative good faith presumption applied, making that possibility “dispositive.”

Having disposed of the weak inferences that were drawn from the foregoing evidence, the Court then took aim at the map challengers’ “flawed” expert reports. None of these reports, the Court asserted, could sustain the district court’s finding that race played the predominant role in the Enacted Plan. First, Dr. Kosuke Imai’s report “made no effort to disentangle race from politics”; “failed to consider partisanship”; and “failed to consider ‘core district retention.’” Although Dr. Jordan Ragusa’s report “attempted to disentangle race from politics,” it “failed to account for . . . key mapmaking factors . . . [like] contiguity and compactness” and “used an inferior method of measuring a precinct’s partisan leanings” by using the total number of votes rather than the net number of votes. Dr. Baodong Liu’s report used data from gubernatorial primaries rather than Presidential primaries to measure a district’s partisan leanings and it “failed to account for contiguity and compactness.” Finally, Dr. Moon Duchin’s report, like that of Dr. Imai, “did not account of partisanship or core retention.” In addition, “Dr. Duchin’s conclusion was [incorrectly] based on an assessment of the map as a whole rather than District 1 in particular.”

The additional critical error committed by the district court was its failure “to draw an adverse inference against the [map] [c]hallengers for not providing a substitute map that shows how the State ‘could have achieved its legitimate political objectives’ in District 1 while producing ‘significantly greater racial balance.’” Generally, said the Court, an alternative map is not hard to produce by an “expert armed with a computer.” Indeed, in this case the map challengers hired four experts and one of them, Dr. Imai, generated tens of thousands of maps, though none controlled for politics. “A plaintiff’s failure to submit an alternative map―precisely because it can be designed with ease―should be interpreted by district courts as an implicit concession that the plaintiff cannot draw a map that undermines the legislature’s defense” of “permissible” gerrymandering.

Finally, the Court addressed the vote dilution claim. It held that because the district had resolved this issue on the same incorrect factual findings and reasoning it had used in its racial gerrymandering analysis and it failed to account for how “the differences between claims of vote-dilution differ from those involving racial-gerrymandering,” that court’s decision could not stand. A remand was appropriate, however.

Justice Thomas filed a lengthy opinion in which he concurred in part with the majority’s decision. As an initial matter, he disagreed with the majority’s “searching review” of the expert reports, noting that the Court’s analysis “exceed[ed] the proper scope of clear-error review.” It was of no consequence, though, because “that analysis [was] not necessary to resolve the case.” He wrote separately, however, to “address whether our voting-rights precedents are faithful to the Constitution.” The answer, Justice Thomas maintained, was decidedly “No.” To the contrary, the “Court has no power to decide” the plaintiffs’ claims of racial gerrymandering and vote dilution. Instead, “[d]rawing political districts is a task for politicians, not federal judges.” Justice Thomas reasoned as follows. First, Rucho’s logic as to partisan gerrymandering was equally applicable to claims of racial gerrymandering and vote dilution. That is because all such claims “lack ‘judicially discoverable and manageable standards’ for their resolution,” and as a result are nonjusticiable. Second, respondents’ claims here are nonjusticiable because “[t]he Constitution contemplates no role for the federal courts in the districting process.” Instead, the Election Clause’s text commits exclusive power to Congress to oversee congressional districting. And, Justice Thomas noted, “[n]one of the Constitution’s other provisions undercuts or countermands the Elections Clauses’ clear mandate for Congress to supervise the States’ districting efforts.” Third, the Court’s doctrines to resolve claims of racial gerrymandering and vote dilution “betray[ ] the colorblind promise of the Fourteenth Amendment by endorsing the notion that some racial classifications are benign” and allow reliance on racial stereotypes that certain races classically will vote for certain political parties. Finally, he maintained, courts do not have the power to order the equitable remedy of a new districting map―the remedy at the heart of districting claims.

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented in a 35-page, strongly worded opinion. Justice Kagan asserted that the Court misapplied the clearly erroneous standard to the district court’s factual findings and reworked districting laws in critical ways that will inevitably serve to “specially disadvantage suits to remedy race-based districting.” Regarding the proper application the clearly erroneous standard, Justice Kagan explained that, instead of giving the district court’s factual findings “significant deference” and upholding them if they were “plausible,” the Court relied on the “evidence to its liking; ignore[d] or minimize[d] less convenient proof; disdain[d] the panel’s judgment about witness credibility; and [made] a series of mistakes about expert opinions.” Indeed, what the majority did not acknowledge, she noted, “is that the State’s mapmakers were experienced and skilled in the use of racial data to draw electoral maps; . . . they configured their mapmaking software to show how any change made to the district would affect its racial composition; . . . the racial make-up they landed on was precisely what they needed, to the decimal point, to achieve their partisan goals; and . . . their politics-only story could not account, as a statistical matter, for their large-scale exclusion of African-American citizens.” The three-judge panel considered this evidence and agreed that “[t]he [c]hallengers’ version of events was the more credible. The court, to put the matter bluntly, did not believe the state officials. It thought they had gerrymandered District 1 by race.” So, Justice Kagan concluded, even though the map challengers “introduced more than enough [credible] evidence of racial gerrymandering to support the District Court’s judgment,” the Court’s majority substituted its own judgment for that of the district court, “thus defying the demands of clear-error review.”

Next, Justice Kagan discussed the Court’s reworking of districting law, which was accomplished in the following ways. First, the Court turned the “clearly erroneous” standard on its head through the use of the legislative good faith presumption. Under the Court’s view, “all deference that should go to the [district] court’s factual findings for the [map challengers] instead goes to the losing [State], because [its legislature] is presumed to act in good faith.” Thus, “the wrong side gets the benefit of the doubt.” “The principal effect of th[is] novel rule will be to defeat valid voting-discrimination claims.” Indeed, she said, states will be free to predominantly use race in its districting, or at least use it “as a short cut-cut to bring about partisan gains,” so long as they “cover [their] tracks” by simply raising “a ‘possibility’ of non-race-based decision-making, and it will be dispositive.” Second, the Court’s invention of a new evidentiary rule―the requirement of an alternate map―will unnecessarily burden plaintiffs in racial-gerrymandering cases,” “no matter how much proof of a constitutional violation they otherwise present.” This was especially troublesome to Justice Kagan because it contradicted the majority decision in another racial gerrymandering case, Cooper v. Harris, 581 U.S. 285 (2017), where the Court (with Justice Alito in the dissent) had explicitly rejected an alternate map requirement. As a result, the map challengers in the present case were being “punishe[d]” “for thinking that this Court would be good to its word.”

Thornell v. Jones, 22-982.

By a 6-2-1 vote, the Court held that the Ninth Circuit erred when it granted habeas relief to respondent Danny Lee Jones on ineffective assistance of counsel grounds, and that Jones’s claim fails. In 1993, Jones murdered Robert Weaver, his seven-year-old daughter Tisha Weaver, and his grandmother Katherine Gumina to steal Weaver’s $2000 gun collection. Jones beat each of the victims with a baseball bat and asphyxiated Tisha with a pillow. He then left town with the guns, using them to pay for a trip to Las Vegas. Robert and Tisha died immediately, but Gumina lived for another 17 months before succumbing to her injuries. Jones was charged and convicted by a jury of two counts of premeditated first-degree murder and one count of attempted premeditated first-degree murder. The trial court identified three aggravating factors and found the mitigating evidence, including testimony from a court-appointed forensic psychiatrist, “not sufficiently substantial to outweigh the aggravating circumstances.” The Arizona Supreme Court affirmed the decision after weighing all the aggravating and mitigating evidence presented.

Jones challenged his sentence through state postconviction review, claiming his attorney was ineffective for failing to retain an independent neuropsychologist and make a timely request for neurological testing. After an evidentiary hearing, the state court rejected his claims. Jones then filed a habeas petition in federal district court, which held an evidentiary hearing but ultimately concluded that Jones could not show prejudice because the additional information did not sufficiently alter the sentencing profile presented to the sentencer. The Ninth Circuit reversed, but the Supreme Court vacated that judgment and remanded for the Ninth Circuit to determine whether it was appropriate to consider the new evidence presented at the federal evidentiary hearing under Cullen v. Pinholster, 563 U.S. 170 (2011). Upon reconsideration, the Ninth Circuit once again granted habeas relief, determining that it was permissible to consider the new evidence and concluding there was a reasonable probability that Jones would not have received a death sentence. But the panel did not mention any aggravating factors until issuing an amended opinion. In an opinion by Justice Alito, the Court reversed and remanded.

The Court began by explaining that under the prejudice prong of the Strickland standard, a defendant is prejudiced only if “there is a reasonable probability that, absent [counsel’s] errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” The Court found that the Ninth Circuit departed from that standard in three ways. First, the Ninth Circuit failed to consider the significant aggravating circumstances adequately. The Court noted that the Ninth Circuit’s initial opinion did not mention the aggravating factors, and even when these factors were acknowledged in the amended opinion, they were not given the weight they would have received from an Arizona sentencing judge. Second, “the Ninth Circuit applied a strange Circuit rule” prohibiting the assessment of the relative strength of expert witness testimony in Strickland cases. The Court found this rule unsound, stating that determining whether a defense expert’s report or testimony would have created a reasonable probability of a different result requires evaluating the strength of that report or testimony, which necessitates a comparative analysis against the prosecution expert’s contrary opinion. Third, the Court criticized the Ninth Circuit’s use of Eddings v. Oklahoma, 455 U.S. 104 (1982), to conclude that the district court erred by giving diminished persuasive value to Jones’s mental health conditions. The Court clarified that Eddings held that the sentencer may not refuse to consider relevant mitigation evidence, but it does not prevent the sentencer from finding such evidence unpersuasive. The Court found these errors and Jones’s argument “squarely at odds with the established understanding of prejudice” and inconsistent with Strickland.

The Court then analyzed for itself the prejudice in this case. The Court concluded that “[m]ost of the mitigating evidence Jones presented at the federal evidentiary hearing was not new, and what was new would not carry much weight in Arizona court,” whereas “the aggravating factors . . . are extremely weighty.” The mitigation evidence upon which Jones now relied included: (1) mental illness; (2) cognitive impairment caused by a history of head trauma; (3) childhood abuse; and (4) substance abuse. But for each piece of mitigation evidence, the Court found it unlikely to have resulted in a different sentence because the Arizona courts had already received similar testimony. The Court noted that anything Jones added at the federal evidentiary hearing merely corroborated the testimony the Arizona courts had already considered and was not sufficiently related to the murders. The Court also noted that the mitigating evidence “contrasts sharply with the strength of the aggravating circumstances,” emphasizing that these aggravating factors are given significant weight in Arizona. The Court also rejected the Ninth Circuit’s assertion that its Strickland prejudice analysis was supported by the Court’s decisions in similar cases. The Court pointed out that the precedents cited by the Ninth Circuit were “very different from the case now before” the Court, as in those cases defense counsel introduced little to no mitigating evidence at the original sentencing, and the original sentencer found only a few aggravating circumstances.

Justice Sotomayor wrote a dissenting opinion that Justice Kagan joined. Justice Sotomayor agreed with the majority that the Ninth Circuit erred by ignoring the strong aggravating circumstances. But she maintained that the majority went “unnecessarily” further by engaging in the reweighing itself. Justice Sotomayor emphasized that given the thousands of pages of a contested and complex record, it was inappropriate for the Court to settle a fact-sensitive issue. Thus, she would have vacated the judgment below, but remanded for the Ninth Circuit to consider the entire record in the first instance.

Justice Jackson also wrote a dissenting opinion. She concluded that the majority erred by finding that the Ninth Circuit ignored the aggravating circumstances. Instead, she insisted that the Ninth Circuit properly evaluated, albeit concisely, the mitigating evidence that Jones’s trial counsel failed to present against the aggravating factors. Justice Jackson stated that there is “no benchmark length for any such discussion,” noting other decisions in which the Court granted habeas relief after “similarly succinct evaluation of aggravating factors.” In her opinion, the majority’s critique was not of the Ninth Circuit’s methodology but rather the weight the Ninth Circuit assigned to the relevant facts.

National Rifle Association of America v. Vullo, 22-842.

The Court unanimously held that the NRA plausibly alleged that the then-superintendent of the New York Department of Financial Services (DFS), Maria Vullo, violated the First Amendment “by coercing . . . regulated entities to terminate their business relationships with the NRA in order to punish or suppress the NRA’s [pro-gun] advocacy.” The NRA alleged as follows: The DFS “oversees insurance companies and financial services institutions doing business in [New York].” It has the power to “initiate investigations and civil actions against regulated entities” and refer criminal violations for prosecution. It initially investigated an insurance program the NRA offered its members called Carry Guard. In 2017, Vullo concluded that several of Carry Guard’s features―including its coverage of intentional criminal acts―violated New York law. When the two insurance companies that administered and underwrote the program learned of DFS’s investigation, they suspended Carry Guard. Vullo’s investigation then expanded into the NRA’s other insurance programs, many of which were underwritten by Lloyd’s of London and administered by Lockton Companies. In February 2018, while Vullo’s investigation was ongoing, a mass shooting occurred in Parkland, Florida, in which 17 individuals were murdered. Shortly thereafter, “Vullo met with senior executives at Lloyd’s, where she expressed her view, shared by then-Governor Andrew Cuomo, regarding gun control “‘and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA.’” Vullo said she was less interested in pursuing various “technical regulatory infractions plaguing” New York’s insurance industry “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” “Vullo and Lloyd’s struck a deal: Lloyd’s ‘would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,’ and ‘in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.’”

Thereafter, Vullo sent “letters on DFS letterhead entitled, ‘Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations,” to insurance companies and financial service institutions. In these letters, Vullo noted the social and corporate “backlash” against the NRA and other similar organizations after the Parkland shooting. Vullo “‘encourage[d]’ DFS regulated-entities to: (1) ‘continue evaluating and managing their risks, including reputation risks that may arise from their dealings with the NRA or similar gun promotion organizations’; and (2) ‘review any relationships they have with the NRA or similar gun promotion organizations’; and (3) ‘take prompt actions to manag[e] these risks and promote public health and safety.’” Vullo and Cuomo also “issued a joint press release that echoed many of the letters’ statements,” and “urg[ed] all insurance companies and banks doing business in New York” to cease any arrangements with the NRA. The next day, Cuomo reiterated this position in a tweet on Twitter. DFS subsequently entered into consent decrees with Lockton, Chubb Limited, and Lloyd’s under which the offending companies stipulated to violating New York insurance law; “agreed not to provide any NRA-endorsed insurance programs (even if lawful)”; and agreed to pay millions of dollars in fines.

As relevant here, the NRA sued Vullo, claiming that she “violated the First Amendment by coercing DFS-regulated parties to punish or suppress ‘the NRA’s pro-Second Amendment viewpoint’ and ‘core political speech.’” The NRA’s complaint raised both censorship and retaliation First Amendment claims. Vullo moved to dismiss, arguing, among other things, “that the alleged conduct did not constitute impermissible coercion.” The district court denied the motion, holding that the NRA’s allegations pertaining to Vullo’s and Cuomo’s actions “could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action,” thus violating the First Amendment. The Second Circuit reversed, concluding “that Vullo’s alleged actions constituted permissible government speech and legitimate law enforcement, not unconstitutional coercion.” In an opinion by Justice Sotomayor, the Court vacated and remanded

To begin, the Court explained that if a government official engages in her own expressive conduct, then “the Free Speech Clause has no application.” (Internal quotation marks omitted.) “What she cannot do, however, is use the power of the State to punish or suppress disfavored expression.” The Court noted that it previously had “explored the distinction between permissible attempts to persuade and impermissible attempts to coerce” in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). In that case, “a state commission used its power to investigate and recommend criminal prosecution to censor publications” containing, as averred by the commission, obscene material. At its core, “Bantam Books stands for the principle that . . . [a] government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” Since then, courts of appeals have applied “a multifactor test or a totality-of-the-circumstances analysis” “to determine whether a challenged communication is reasonably understood to be a coercive threat.”

In this case, all “agree[d] that Bantam Books provide[d] the right analytical framework” for First Amendment claims based on government coercion and “[r]ightly” “embrace[d] the lower courts’ multifactor test as a useful, though nonexhaustive guide.” “Considerations like who said what and how, and what reaction followed,” the Court clarified, “are just helpful guideposts in answering the question of whether an official seeks to persuade or, instead, to coerce.” What the parties disagreed on was the Second Circuit’s application of this framework. The Court ultimately agreed with the NRA and the federal government in rejecting the Second Circuit’s analysis. To explain its reasoning, the Court started with the premise that, “[t]o state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.” Because of the procedural posture of this case, “the Court assume[d] the truth of ‘well-pleaded factual allegations’ and ‘reasonable inference[s]’ therefrom.” Under that standard, “the NRA [had] plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA’s gun-promotion advocacy.”

In so holding, it first considered Vullo’s authority as a government official. “As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York.” Next, the Court considered Vullo’s actions regarding the DFS-regulated entities. For instance, Vullo essentially communicated to Lloyd’s that the company “could avoid liability for [unrelated] [insurance law] infractions if it aided DFS’s campaign against gun groups by terminating its business relationships with them.” (Internal quotation marks omitted.) This reasonably could be “understood as a threat or as an inducement.” The Court then looked to Lloyd’s reaction, which confirmed the coercive nature of Vullo’s communications. Both publicly and privately, Lloyd’s announced its direction to its syndicates to cease an insurance relationship with the NRA, now and in the future. Moreover, privately, Lloyd’s indicated that “the DFS investigation had transformed the gun issue into a regulatory, legal[,] and compliance matter.” (Internal quotations omitted.) The Court further found that the NRA’s other allegations reinforced its First Amendment claim. Vullo’s 2018 guidance letters, on official letterhead, singled out the NRA and warned DFS-regulated entities to “consider their reputational risk, and then tied that obligation to an encouragement for prompt actio[n] to manag[e] these risks.” Finally, the Court noted Cuomo’s tweet providing a similar warning to New York businesses. The Court faulted the Second Circuit for “taking the allegations in isolation and failing to draw reasonable inferences in the NRA’s favor in violation of [the] Court’s precedents.”

In closing, the Court cautioned that, “[t]he NRA’s allegations, if true, highlight[ed] the constitutional concerns with the kind of intermediary [or third-party] strategy that Vullo purportedly adopted to target the NRA’s advocacy.” By using third-parties, government officials can “expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over.” (Internal quotation marks omitted.) This may bear out in the present case: The NRA was not the directly regulated party; but Vullo “allegedly used the power of her office to target gun promotion by going after the NRA’s business partners” and obtaining compliance from the companies’ fear of “regulatory hostility.” Nevertheless, added the Court, nothing in its decision “gives advocacy groups like the NRA a right to absolute immunity from [government] investigation, or a right to disregard [state or federal] laws.” Nor does this case “prevent[ ] government officials from forcefully condemning views with which they disagree.”

Justice Gorsuch filed a brief, one-paragraph concurring opinion. He noted the Court’s acknowledgement that the lower courts’ use of a multifactor test to analyze claims of government coercion of private parties “might serve ‘as a useful, though nonexhaustive, guide.’” Sometimes, however, “they might not.” As a result, Justice Gorsuch advised lower courts “to heed th[e] Court’s directive: Whatever value these ‘guideposts’ serve, they remain ‘just’ that and nothing more.” At its core, “the critical question is whether the plaintiff has plausibly allege[d] conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to suppress the plaintiff’s speech.” (Internal quotation marks omitted.)

Justice Jackson also filed a concurring opinion “to stress the important distinction between government coercion, on the one hand, and a violation of the First Amendment, on the other.” The two are different, Justice Jackson explained. “Coercion of a third party can be the means by which the government violates the First Amendment rights of another. But the fact of coercion, without more, does not state a First Amendment claim. Rather, in addition to finding that the government has crossed a line from persuasion to coercion, courts must assess how that coercion actually violates a speaker’s First Amendment rights.” Although in other cases “the coercion and First Amendment inquiries practically merge,” the NRA’s complaint in this case alleging “both censorship and retaliation theories” for its First Amendment claim demands separate analyses. Justice Jackson encouraged the parties and lower courts on remand to “consider the censorship and retaliation theories independently, mindful of the distinction between government coercion and the ways in which such coercion might (or might not) have violated the NRA’s constitutional rights.”

Cantero v. Bank of America, N.A., 22-529.

The Court unanimously held that the Second Circuit failed to analyze whether New York’s interest-on-escrow law is preempted as applied to national banks in accordance with the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and Barnett Bank of Marion County, N. A. v. Nelson, 517 U.S. 25 (1996). When national banks make home mortgage loans, the borrower makes a mortgage payment into an escrow account operated by the bank. The bank then uses the funds in escrow to pay the borrower’s insurance premium and property taxes. The Real Estate Settlement Procedures Act, which governs the operation of escrow accounts by national banks, does not require national banks to pay interest to borrowers on the balance of their escrow accounts. But under New York law, when a bank maintains an escrow account for a mortgage, the bank is required to pay borrowers interest on the balance. Bank of America, however, refused to pay interest on the money in petitioners’ New York-based escrow accounts, leading petitioners to file putative class-action suits in federal district court. The district court agreed with petitioners that nothing in the National Bank Act preempted the New York law. The Second Circuit reversed, holding that the New York law was preempted as applied to national banks. The court relied on McCulloch v. Maryland, 4 Wheat. 316 (1819), for the proposition that federal law preempts any state law that “purports to exercise control over a federally granted banking power.” In an opinion by Justice Kavanaugh, the Court reversed and remanded.

The Court began by emphasizing that the Dodd-Frank Act explicitly instructs courts on how to analyze federal preemption of state laws regulating national banks. As an initial matter, Dodd-Frank Act rejects field preemption in §25(b)(4), which states that federal banking law “does not occupy the field in any area of State law.” Consequently, not all state laws regulating national banks are preempted. Instead, Dodd-Frank specifies that the National Bank Act preempts state law “only if” the state law “discriminates against national banks as compared to state banks” or “prevents or significantly interferes with the exercise by the national bank of its powers,” following the preemption standard outlined in Barnett Bank. The Court explained that, since New York’s interest-on-escrow law does not discriminate against national banks, whether the law is preempted must be analyzed under Dodd-Frank’s “prevents or significantly interferes” preemption standard, which expressly incorporates the Court’s decision in Barnett Bank.

The Court noted that in Barnett Bank it reviewed its “precedents to determine whether a state law regulating national banks falls on the permissible or preempted side of the significant interference line.” The Court then walked through those cases, finding that they examined situations in which state laws represented significant interference and were thus preempted, as well as those that were permissible regulations on national banks. Thus, the Court said, “[g]iven Dodd-Frank’s direction to identify significant interference ‘in accordance with’ Barnett Bank, courts addressing preemption questions in this context must do as Barnett Bank and likewise take account of those prior decisions of [the] Court and similar precedents.” Because only laws that prevent or significantly interfere with the national bank’s exercise of its powers are preempted, a court applying the significant-interference test from Barnett Bank must “make a practical assessment of the nature and degree of the interference caused by a state law.” If a state banking law is “more akin” to its banking preemption precedents that found preemption, “then the state law is preempted”; if the state banking law is “more akin” to its banking preemption precedents that found no preemption, “then the state law is not preempted.”

The Court found that when the Second Circuit analyzed the New York interest-on-escrow law, it did not conduct the “kind of nuanced comparative analysis” required. Instead, it applied a categorial test distilled from McCulloch that would “preempt virtually all state laws that regulate national banks.” The Court acknowledged that a clear preemption line may be helpful, but said that Congress did not endorse a bright-line analysis when it incorporated Barnett Bank into the Dodd-Frank Act. Instead, it favored an approach that relies on precedent to assess whether a state law significantly interferes with national bank operations. The Court therefore vacated the Second Circuit’s judgment and remanded so that the Second Circuit could assess New York’s interest-on-escrow law “in a manner consistent with Dodd-Frank and Barnett Bank.”

Brown v. United States, 22-6389.

By a 6-3 vote, the Court held that under the Armed Career Criminal Act (ACCA), a state drug conviction qualifies as a predicate offense for the 15-year mandatory minimum sentence if the drug involved was listed on the federal schedules at the time of that conviction even if it was later removed. ACCA imposes a 15-year mandatory minimum sentence on defendants convicted of illegal firearm possession who have a criminal history suggesting a propensity for violence. Under 18 U.S.C. §924(e)(1), the enhanced penalty is triggered if defendants, among other things, have “three previous convictions” for “a serious drug offense.” A state crime is deemed a “serious drug offense” if it carries a maximum sentence of at least ten years’ imprisonment, involves a controlled substance as defined in the Controlled Substances Act (CSA), and if the state’s definition of the drug in question matches the federal definition. In consolidated cases, the Court considered “whether a state crime qualifies as a ‘serious drug offense’ if the drug was on the federal schedules when the defendant possessed or trafficked it but was later removed.”

The CSA contains five schedules of controlled substances that are updated each year by the Attorney General. Petitioners Justin Brown and Eugene Jackson were each convicted of the federal crime of possession of a firearm by a convicted felon under §922(g)(1). In both instances, an ACCA enhancement was recommended based on prior state felony drug convictions. But based on changes to the federal drug schedule following their state convictions, both defendants contended that their prior convictions did not qualify as “serious drug offenses.” Brown had four Pennsylvania drug convictions for possessing marijuana with intent to distribute. At the time of these convictions, the federal and Pennsylvania definitions of marijuana were identical. While Brown’s federal charge was pending, Congress changed the federal definition of marijuana. Consequently, since the federal and state definitions no longer fully matched at the time of his sentencing, Brown argued that his marijuana convictions no longer qualified as “serious drug offenses” for the ACCA sentencing enhancement. Jackson had several Florida convictions for possession and distribution of cocaine. After his state convictions but before his §922(g)(1) conviction, the federal government amended the definition of cocaine, causing the federal and Florida definitions to no longer match. Like Brown, Jackson argued that these prior convictions no longer qualified as “serious drug offenses.” In both cases, the district courts disagreed and imposed the ACCA-enhanced sentences, and the Third and Eleventh Circuits affirmed these decisions. In an opinion by Justice Alito, the Court affirmed, ruling that a prior drug conviction qualifies as an ACCA predicate if the state and federal definitions of the drug matched when the defendant committed the state offense.

In their arguments to the Court, the parties offered three different answers as to when the federal and state definitions of a drug must match for ACCA purposes. The Government argued that a prior state drug conviction qualifies if the federal and state definitions matched when the defendant committed the state crime. Jackson argued that the definitions must match when the defendant violates the federal felon-in-possession statute. Lastly, Brown contended that the definitions must align at the time of sentencing for the federal offense. The Court stated that the operative language of the statute was insufficient to answer the question before it, but found that precedent and statutory context supported the Government’s interpretation.

The Court relied on McNeill v. United States, 563 U.S. 816 (2011), which addressed ACCA’s applicability when a state statute had the required maximum penalty at the time of the defendant’s conviction but was subsequently reduced. In answering that question, the Court used a “backward-looking” approach and determined that a later statutory amendment reducing the maximum penalty did not affect the qualification. The Court here said this “backward-looking” approach supported the Government’s interpretation. And the Court noted that the clear wording of the provision immediately preceding the one under consideration also indicates a “backward-looking” approach. Section 924(e)(2)(A)(i) also defines a “serious drug offense” to include, among other things, “offense[s] under the Controlled Substances Act.” Under that definition, a later change in a federal drug schedule does not change the fact that an offense “under the [CSA]” is a “serious drug offense.” The Court emphasized that its “backward-looking” approach treats state offenses “involving . . . a controlled substance (as defined in [the CSA])” the same as with federal offenses “under the [CSA].” By contrast, petitioners’ interpretations would treat federal and state offenses differently because the federal offense would remain an ACCA predicate, but the state offense would not. The Court found no reason why Congress would have wanted that result, given that it “clearly indicated that past conduct violating the CSA is indicative of a defendant’s ‘culpability and dangerousness.’” Lastly, the Court found that the “backward-looking” approach also best fulfills ACCA’s statutory objectives, which aim to impose harsher penalties on defendants with a history of repeated ACCA predicate offenses, as they are deemed “especially likely to inflict grave harm when in possession of a firearm.” The Court reasoned that since a defendant’s history of criminal activity does not “cease to exist” merely because the crime was later amended or eliminated, it makes sense to ask “whether a prior offense met ACCA’s definition of seriousness—and thus suggested future danger—at the time it was committed.”

The Court dismissed petitioners’ arguments for an opposing outcome as unconvincing. First, the Court dismissed Jackson’s reliance on the “reference canon” to assert that ACCA adopts the federal drug schedules as they exist whenever a matter under ACCA arises. The Court stated that the canon is reserved for a statutory reference to a “general subject” that then incorporates the law on that subject as it exists whenever a question under that statute arises. But if a reference is “to another statute by specific title or section number,” such as ACCA’s reference to 21 U.S.C. §802, it incorporates the referenced statute as it existed when the referring statute was enacted, without considering any later amendments. The Court likewise rejected Brown’s argument that ACCA’s use of present-tense language in the definition of a “serious drug crime” suggests a present-day focus requiring courts to consider the drug schedules in effect at the time of federal sentencing. The Court again pointed to its decision in McNeill as rejecting this argument, having noted that using the present tense rather than the past was likely a stylistic rather than substantive choice. The Court also dismissed the argument that, according to United States v. Schooner Peggy, 1 Cranch 103 (1801), a case in progress must be decided under the new law if a law changes during the proceedings, pointing out that §924(e)(2)(A)(ii) remained unchanged throughout the litigation. Finally, the Court noted that the rule of lenity does not apply because the statute is not “grievously ambiguous” because the context, precedent, and statutory design demonstrate Congress’ intent.

Justice Jackson filed a dissenting opinion, which Justice Kagan joined in full, and Justice Gorsuch joined in large part. The dissent disagreed with the majority’s assertion that the statute’s text did not address the question presented. According to the dissent, the text provides a “definitive[] answer” that “courts should apply the drug schedules in effect at the time of the federal firearms offense that triggers ACCA’s potential application.” The dissent insisted that precedent, context, and purpose do not require a different result. Citing the use of the cross-reference, the dissent highlighted that courts proceed in a straightforward plug-and-play manner concerning statutory cross-references. The dissent pointed out that ACCA explicitly defines “serious drug offense,” and this definition cross-references the continuously updated federal drug schedule. This, in turn, directs sentencing courts to refer to the federal drug schedules in effect at the time of the federal offense. The dissent found this conclusion reinforced by the statute’s use of the present tense. It pointed out that through this present tense language, “Congress was deliberately encompassing the annual updates reflected in the federal drug schedules.”

Moving on from the textual analysis, the dissents rebuffed the majority’s assertion that precedent and context dictate a distinct outcome. The dissent distinguished McNeill, which required analyzing “the law under which the defendant was convicted,” requiring a backward-looking inquiry. But here, the Court is determining whether the prior state law conviction qualifies as a “serious drug offense” under federal law by looking at the federal drug schedules, which do not serve as “the law under which the defendant was convicted,” thereby eliminating the necessity for a backward-looking inquiry. The dissent also pointed out that Congress could have employed the same classification criteria for federal and state prior offenses but opted not to do so. Finally, in a section Justice Gorsuch did not join, the dissent disputed the majority’s assertion that its interpretation of the statutes “best fulfills ACCA’s statutory objectives.” The dissent asserted that, under the majority’s decision, ACCA’s assessment of a defendant’s future dangerousness relies on past criminal behavior that federal law no longer considers serious. Instead, the dissent contends that ACCA’s objectives are better served by assessing whether a defendant’s previous offenses meet today’s standards of seriousness.

Coinbase, Inc. v. Suski, 23-3.

The Court unanimously held that when parties have entered into two contracts—one directing arbitrability disputes to arbitration and the other indicating that such disputes should be settled in court—a court must decide which contract takes precedence. Coinbase, Inc. operates a cryptocurrency exchange platform; respondents utilize the platform to buy and sell cryptocurrencies. Upon creating their accounts, the parties created the first pertinent contract, the Coinbase User Agreement. The agreement included an Arbitration Agreement section containing a delegation clause directing all disputes to arbitration, including those concerning arbitrability. A second contract was created when Coinbase offered its users a sweepstakes to win a cryptocurrency called Dogecoin. By submitting entries into the sweepstakes, respondents agreed to the Official Rules, which contained a forum selection clause designating California courts as the exclusive jurisdiction for any disputes regarding the sweepstakes. After the sweepstakes concluded, respondents filed a class action complaint in federal district court alleging that the sweepstakes violated various California consumer laws. Coinbase moved to compel arbitration based on the User Agreement’s delegation clause. The district court denied the motion, citing a conflict between the arbitration provision in the User Agreement and the forum selection clause in the Official Rules, deeming the determination of the governing contract a question for the court. The Ninth Circuit affirmed. In an opinion by Justice Jackson, the Court affirmed.

The Court observed that the parties can agree that an arbitrator will decide the merits, and can also agree that an arbitrator, instead of a court, will resolve preliminary arbitrability questions. The Court emphasized that when disputes arise from such agreements, they must be settled using contract principles by examining what the parties “agreed about that matter.” In this case, due to the conflict between the delegation clause in the first contract and the forum selection clause in the second, the answer to the question hinges on “whether the parties agreed to send the given dispute to arbitration.” The Court concluded that this determination “must be made by a court.” The Court rejected each of Coinbase’s claims for why the Ninth Circuit’s “bottom-line” ruling should not stand.

First, the Court disagreed with Coinbase’s reliance on the severability principle, under which “an arbitration [or delegation] provision is severable from the remainder of the contract,” and “unless the challenge is to the arbitration [or delegation] clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.” Coinbase argued that this principle required the Ninth Circuit to isolate the delegation provision from the User Agreement and only consider arguments specific to that provision. Although the Court did not rule on whether this case involved the severability principle, it concluded that the principle was still satisfied. The Court noted that while the severability principle requires a party seeking to avoid arbitration to challenge the arbitration or delegation clause directly, it does not mandate that the party challenge only the clause. In short, “[a]rbitration and delegation agreements are simply contracts, and, normally, if a party says that a contract is invalid, the court must address that argument before deciding the merits of the contract dispute. So too here.”

The Court next dismissed as outside the scope of the question presented Coinbase’s claim that the Ninth Circuit erred by holding that the Official Rules’ forum selection clause superseded the User Agreement’s delegation provision. Lastly, the Court disagreed that its holding would “invite chaos” by promoting challenges to delegation clauses. Instead, it noted that its holding would not affect cases where the parties have agreed to only one contract and that contract has a delegation provision. It highlighted that a court will only get involved in deciding which contract governs in situations where the parties have agreed to two contracts, and one sends arbitrability disputes to arbitration, and the other either explicitly or implicitly sends arbitrability disputes to the court.

Justice Gorsuch concurred. He joined the Court’s opinion on the understanding that it does not endorse the reasoning of the Ninth Circuit, including its state contract law analysis of the parties’ agreements. Instead, he joined the Court’s reaffirmance of “well-established principles about the primacy of the parties’ agreements when it comes to arbitration” and that “a court ha[s] to decide whether and to what extent the parties here reached ‘an agreement’ to have an arbitrator resolve the question of arbitrability.”

Cases Granted Review

City and County of San Francisco v. Environmental Protection Agency, 23-753.

The question presented is “[w]hether the Clean Water Act allows EPA (or an authorized state) to impose generic prohibitions in [National Pollutant Discharge Elimination System (NPDES)] permits that subject permitholders to enforcement for” violating “water quality standards without identifying specific limits to which their discharges must conform.” Under the NPDES program, set forth in §1342 of the Clean Water Act, EPA and authorized states may issue permits for the discharge of pollutants into our waterways, as long as the resulting discharge complies with other provisions of the Act and any other requirements EPA determines to be appropriate. An example of such a provision is included in §1311, which sets forth the Act’s restriction on the “quantities, rates and concentration” of discharged pollutants into our waterways (termed “effluent limitations”), as well as any other stringent limitations that are “necessary to meet water quality standards.” Both effluent limitations and water quality criteria can be expressed in numeric terms or as “narrative limitations” “to implement specific management practices when a numeric limit is not feasible.”

Wastewater collection systems carry sanitary sewage and storm water together to treatment facilities. When these collections systems are overwhelmed, sewage can seep into nearby waters. Those discharges are subject to NPDES permit requirements. San Francisco operates its own system named “Oceanside,” which collects wastewater from hundreds of thousands of city residents. EPA has authorized California to administer its own NPDES program. As a result, California “assumed jurisdiction over [San Francisco’s] near-shore discharges, while EPA continue[d] to regulate discharges” further out to sea. Because the Oceanside system required both federal and state NPDES permits, the permitting process was consolidated. Starting in 2019, EPA and California began the notice and comment process for their draft of the consolidated Oceanside NPDES permit. San Francisco objected to two “narrative limitations” in the draft which, San Francisco argued, injected “unnecessary uncertainty regarding ongoing compliance with the permit.” (Internal quotation marks omitted.) The objected-to limitations were as follows:

• “Receiving Water Limitations”: “Discharge shall not cause or contribute to a violation of any applicable water quality standard (with the exception set forth in State Water Board Order No. WQ 79-16) for receiving waters adopted by the Regional Water Board, [State Water Board,] or . . . EPA.”

• “Regional Standard Provisions”: “Neither the treatment nor the discharge of pollutants shall create pollution, contamination, or nuisance as defined by California Water Code section 13050.”

EPA and California disagreed with San Francisco’s objections, and each issued a final NPDES permit that included the two narrative limitations.

San Francisco petitioned the Environmental Appeals Board for review of EPA’s issuance of the NPDES permit. The Board rejected San Francisco’s various claims. And in a 2-1 decision, the Ninth Circuit denied San Francisco’s petition for review of this permit. 75 F.4th 1074. The court held that the Act authorized EPA to include the objected-to limitations and that these limitations were clear inasmuch as they required the pollutant discharges to comply with state water quality standards.

San Francisco argues in its cert petition that the Ninth Circuit’s decision contradicts precedent from the Supreme Court and the Second Circuit. San Francisco further argues that the Ninth Circuit’s decision was wrong for the following reasons. First, the Act requires NPDES permits to “clearly specify” permit-holders’ obligations regarding discharge of pollutants. Yet the permit in this case only “generically prohibits San Francisco from causing or contributing to exceedances of water quality standards.” Second, “[g]eneric prohibitions . . . set compliance obligations that are both undefined and subject to change due to factors beyond the” permitholder’s control. As a result, San Francisco is “vulnerable to enforcement based on whether the Pacific Ocean meets state-adopted water quality standards.” Third, generic prohibitions prevent permitholders from taking advantage of the safe harbor provision included in the Act. In essence, if a permitholder complies with the terms of an NPDES permit, that permit will shield its holder from liability under the Act. Such protection is useless, however, if the permit’s prohibitions are so vague that the permitholder cannot determine the pollution thresholds.

In response, EPA contends that the Ninth Circuit’s decision did not create a circuit split or contradict Supreme Court precedent. On the merits, EPA asserts that the two narrative limitations adequately specify the applicable discharge limits when read in context with other provisions of the permit and references to state water code sections and plans. As to EPA’s “Receiving Water Limitations” provision, the agency points to the references to the “Basin Plan, the Ocean Plan, and the State Water Board Order No. 79-16” elsewhere in the permit as identifying “the applicable state water quality standards.” According to EPA, “[t]hose standards, in turn, establish specific limits to which [San Francisco] must conform.” As to the “Regional Standards Provisions,” EPA notes that it specifically references California Water Code §13050, which defines pollution, contamination, and nuisance. These definitions in §13050, EPA argues, necessarily specify “the adverse water-quality effects that [San Francisco] must avoid.”

Delligatti v. United States, 23-825.

At issue is whether, for purposes of applying 18 U.S.C. §924(c), “a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.” Petitioner Salvatore Delligatti, an associate of the Genovese Crime Family, was hired by the owner of a local gas station frequented by the Family to murder Joseph Bonelli, a local “bully” who was allegedly causing problems. Delligatti assembled a “murder crew” and provided it with a gun and a car. The crew drove to Bonelli’s home intending to kill him but abandoned the plan when he arrived home with another person, fearing the presence of a potential witness. Delligatti urged the crew to return that day, but they decided to go back the following day instead. By the next day, however, law enforcement had discovered the plan and intercepted and arrested the crew near Bonelli’s home. Among other crimes, Delligatti was charged with attempted murder in aid of racketeering in violation of the Violent Crimes in Aid of Racketeering Act (VICAR), under 18 U.S.C. §1959, and carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. §924(c)(1)(A), which carries a mandatory minimum of a five-year consecutive sentence.

Under §924(c)(3)(A), a “crime of violence” is defined as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” (This is known as the “elements clause.”) Before trial, Delligatti moved to dismiss the §924(c) count, alleging that none of the charged predicate offenses qualified as a “crime of violence.” The district court denied the motion. Delligatti was found guilty on all counts and sentenced to 300 months of imprisonment, including a 60-month consecutive sentence for the §924(c) offense. Before his appeal, the Court in United States v. Davis, 588 U.S. 445 (2019), found that the residual clause in §924(c) that defined a “crime of violence” was unconstitutionally vague. Without the residual clause, the only potential valid §924(c) predicate “crime of violence” offense remaining was the VICAR attempted murder charge, based on a violation of New York State Penal Law. Under New York law, criminal liability can be based on voluntary acts or omissions. As a result, on appeal Delligatti argued that his §924(c) conviction should be vacated because the predicate offense did not qualify as a “crime of violence” under the elements clause definition. He contended that, due to the categorical approach, which does not consider the specific facts of a case but instead examines the minimal criminal conduct necessary for a conviction under a particular statute, the possibility of liability based on an omission means the offense does not meet the definition of a crime of violence. The Second Circuit rejected this argument, citing its recent en banc decision in United States v. Scott, 990 F.3d 94 (2d Cir. 2021). The court explained that, whether through an act or omission, it is the intentional use of physical force against a person that causes death, and Delligatti’s argument would lead to the illogical conclusion that even intentional murder would not be categorized as a “crime of violence.” Thus, the court ruled that Delligatti’s conviction for attempted murder qualified as a “crime of violence” under the elements clause of §924(c). 83 F.4th 113.

Both Delligatti and the Government agree that the circuits are divided on the question whether a crime that requires proof of bodily injury or death but can be committed by failing to act has as an element the use, attempted use, or threatened use of physical force. On the merits, Delligatti argues that crime that can be committed through inaction does not have “as an element the use, attempted use, or threatened use of physical force,” as it does not involve any use of force, much less the type of violent physical force required to satisfy the use-of-force clause. He argues that the terms “use” and “physical force,” when given their ordinary meanings, must refer to affirmative conduct, which does not include omission. Delligatti rejects any reliance on United States v. Castleman, 572 U.S. 157 (2014), arguing that the Court expressly did not address whether the cause of bodily injury necessarily entails violent force. Lastly, Delligatti asserts that the rule of lenity should apply in any event.

The Government responds that, despite the “theoretical possibility that New York attempted second-degree murder could be committed by the omission to perform a legally required duty, that offense is a crime of violence.” The Government relies on the holding in Castleman that physical force may be applied directly or indirectly. In the Government’s words, “Castleman observed [that] physical force can be employed through such indirect methods as shooting a gun at the victim, poisoning the victim, infecting the victim with a disease, or resort[ing] to some intangible substance such as a laser beam.” (Internal quotation marks omitted.) The Government notes that although Castleman did not specifically address the §924(c)(3)(A) elements clause, the logic still applies. It asserts that the force in question is not measured by what the defendant did but by how it affected the victim.

NAAG Center for Supreme Court Advocacy Staff

• Dan Schweitzer, Director and Chief Counsel
• Melissa Patterson, Supreme Court Fellow
• Amanda Schwartz, Supreme Court Fellow

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