July 5, 2024 | Volume 31, Issue 17
This Report summarizes opinions issued on June 21, 2024 (Part I).
Opinions
United States v. Rahimi, 22-915.
By an 8-1 vote, the Court held that “[w]hen a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect.” The Court therefore rejected a facial challenge to 18 U.S.C. §922(g)(8), which prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual.
Following a violent altercation with respondent Zackey Rahimi, his girlfriend C.M. sought a restraining order against him. She recounted various assaults by him; he had the opportunity to testify but did not. A state court issued a restraining order, entered with his consent, that included a finding that he had committed “family violence,” that this violence was “likely to occur again,” and that he posed “a credible threat” to the “physical safety” of C.M. or their child A.M. Among other things, the order suspended Rahimi’s gun license for two years. Rahimi violated the restraining order in various ways, including by engaging in a “spate” of shootings. Police obtained a warrant to search Rahimi’s residence and discovered a pistol, a rifle, ammunition, and a copy of the restraining order. Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order in violation of §922(g)(8). Rahimi moved to dismiss, asserting that §922(g)(8) violated on its face the Second Amendment. The district court denied the motion, and the Fifth Circuit affirmed. While Rahimi’s petition for rehearing en banc was pending, the Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022). In light of Bruen, the Fifth Circuit panel withdrew its prior opinion and, after additional briefing and argument, reversed. It concluded that §922(g)(8) “does not fit within our tradition of firearm regulation.” In an opinion by Chief Justice Roberts, the Court reversed and remanded.
The Court stated that “[s]ince the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.” Stepping back, the Court explained that in Bruen “we directed courts to examine our ‘historical tradition of firearm regulation’ to help delineate the contours of the [Second Amendment] right. We explained that if a challenged regulation fits within that tradition, it is lawful under the Second Amendment.” Further, it is the Government’s “burden to ‘justify its regulation.’” Elaborating, the Court stated that “some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.” Just as the Amendment applies to types of arms that did not exist at the founding, “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.” And so “[a] court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’ . . . . [W]hen a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.’ The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” (Citations omitted.)
The Court then applied those principles, and found that “the provision is constitutional as applied to the facts of Rahimi’s own case,” thereby defeating his facial challenge. The Court focused on §922(g)(8)(C)(i), which bars an individual from possessing a firearm if his restraining order includes a finding that he poses “a credible threat to the physical safety” of a protected person. The Court concluded that “the Government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” The Court found that, “[f]rom the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others.” Most critically, “[b]y the 1700s and early 1800s, [] two distinct legal regimes had developed that specifically addressed firearms violence.” First was surety laws, which “authorized magistrates to require individuals suspected of future misbehavior to post a bond that would be forfeited if the individual broke the peace.” And “[i]mportantly for this case, the surety laws also targeted the misuse of firearms.” Second was “going armed” laws, which (in Blackstone’s words) prohibited “riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land.” The law punished these acts with “forfeiture of the arms . . . and imprisonment.”
The Court ruled that, “[t]aken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is by no means identical to these founding era regimes, but it does not need to be. Its prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition the surety and going armed laws represent.” (Citation omitted.) The Court then noted the commonalities: “Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found to threaten the physical safety of another.” Like the surety and going armed laws, “Section 922(g)(8) applies only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another.” And all three types of laws restrict firearms possession only temporarily. Finally, though, the Court rejected “the Government’s contention that Rahimi may be disarmed simply because he is not ‘responsible,’” finding that concept vague, unclear, and unsupported by the Court’s precedents.
Five Justices filed concurring opinions that, in the interests of space, will be only briefly described. Justice Sotomayor filed a concurring opinion that Justice Kagan joined. She wrote to say that “the Court’s interpretation permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.” Along the way, she stated that she “remain[s] troubled by Bruen’s myopic focus on history and tradition, which fails to give full consideration to the real and present stakes of the problems facing our society today.” She “continue[s] to think that the means-end approach to Second Amendment analysis is the right one.”
Justice Gorsuch filed a concurring opinion. He defended Bruen’s history-and-tradition approach, saying that “[d]evelopments in the world may change, facts on the ground may evolve, and new laws may invite new challenges, but the Constitution the people adopted remains our enduring guide. If changes are to be made to the Constitution’s directions, they must be made by the American people. Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history when seeking to discern the meaning and scope of a constitutional provision.” (Citations omitted.) He noted that “[d]iscerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult. Asking that question, however, at least keeps judges in their proper lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs.” He then criticized the interest-balancing test that lower courts had used prior to Bruen.
Justice Kavanaugh filed a lengthy concurring opinion “to review the proper role of test, history, and precedent in constitutional interpretation.” He maintained that “[h]istory, not policy, is the proper guide” for interpreting “vague constitutional text.” That is because “[h]istory can supply evidence of the original meaning of vague text. History is far less subjective than policy. And reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people.” Justice Kavanaugh then “explain[ed] how courts apply pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text.” Among the highlights: (1) “[I]n using pre-ratification history, courts must exercise care to rely only on the history that the Constitution actually incorporated and not on the history that the Constitution left behind.” (2) It is proper to rely on post-ratification history, which accords with the views of “leading actors and theorists in the earliest and latest chapters of the American constitutional story,” and with the Court’s repeated decisions. (3) While “[p]recedent is fundamental to day-to-day constitutional decisionmaking in this Court and every American court,” “the text, as well as pre-ratification and post-ratification history, may appropriately function as a gravitational pull on the Court’s interpretation of precedent.” Justice Kavanaugh then spent five pages criticizing the use of means-end scrutiny and balancing tests, saying it “is policy by another name.” He called balancing tests recent innovations that are “ill-defined” and “can be antithetical to the principle that judges must act like umpires.” He concluded by approving Bruen’s adoption of a historical test.
Justice Barrett filed a concurring opinion. She stated that, “[b]ecause the Court has taken an originalist approach to the Second Amendment, it is worth pausing to identify the basic premises of originalism.” Among other things, she noted that “for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function. To be sure, [though], postenactment history can be an important tool.” Justice Barrett observed that “[o]ne difficulty” courts have faced in applying Bruen’s originalism “is a level of generality problem: Must the government produce a founding-era relative of the challenged regulation—if not a twin, a cousin?” She stated that “[t]o be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart. Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’ And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority. Such assumptions are flawed, and originalism does not require them.” (Citation omitted.)
And Justice Jackson issued a concurring opinion. She said that she disagrees with the Bruen methodology, and would have joined the dissent had she been on the Court at that time. She observed that lower courts are struggling to apply Bruen, and are “say[ing] there is little method to Bruen’s madness.” She said “[c]onsistent analyses and outcomes are likely to remain elusive because whether Bruen’s test is satisfied in a particular case seems to depend on the suitability of whatever historical sources the parties can manage to cobble together, as well as the level of generality at which a court evaluates those sources—neither of which we have as yet adequately clarified.”
Justice Thomas filed a lengthy dissenting opinion. He said that, “[w]hile a historical law” that can justify a current gun regulation “need not be a ‘historical twin,’ it must be ‘well-established and representative’ to serve as a historical analogue.” He concluded that “Section 922(g)(8) violates the Second Amendment. First, it targets conduct at the core of the Second Amendment—possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation. To the contrary, the founding generation addressed the same societal problem as §922(g)(8) through the ‘materially different means’ of surety laws.” “Although surety laws shared a common justification with §922(g)(8), surety laws imposed a materially different burden. Critically, a surety demand did not alter an individual’s right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private. Even if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money. To disarm him, the Government would have to take some other action, such as imprisoning him for a crime. By contrast, §922(g)(8) strips an individual of his Second Amendment right.” (Citations omitted.)
Justice Thomas then distinguished going armed laws (affray laws), stating that they “had a dissimilar burden and justification.” “First, affray laws had a distinct justification from §922(g)(8) because they regulated only certain public conduct that injured the entire community.” Thus, “[a]ffrays were intentionally distinguished from assaults and interpersonal violence[.]” “Second, affray laws did not impose a burden analogous to §922(g)(8).” Those laws “prohibited only carrying certain weapons (‘dangerous and unusual’) in a particular manner (‘terrifying the good people of the land’ without a need for self-defense) and in particular places (in public).” Finally, Justice Thomas rejected the Government’s argument “that the Second Amendment allows Congress to disarm anyone who is not ‘responsible’ and ‘law-abiding.’ Not a single Member of the Court adopts the Government’s theory. Indeed, the Court disposes of it in half a page—and for good reason. The Government’s argument lacks any basis in our precedents and would eviscerate the Second Amendment altogether.” (Citation omitted.) Justice Thomas closed by stating: “This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution.”
Smith v. Arizona, 22-899.
The Court held that “[w]hen an expert conveys an absent [laboratory] analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth,” thus implicating the Sixth Amendment’s Confrontation Clause. In 2019, while executing a search warrant on a plot of land, police discovered Jason Smith in a shed on the property with “a large quantity of what appeared to be drugs and drug-related items.” Smith was charged with possession with intent to sell methamphetamine, marijuana, and cannabis. In preparation for trial, the state sent materials seized from the shed to the state’s crime lab. After the lab’s analyst, Elizabeth Rast, tested the suspected drugs, she created a signed report documenting her lab work and results. These results included the weight and type of each drug, as well as her conclusion there were “‘usable quantit[ies]” of methamphetamine, marijuana, and cannabis. The state originally planned for Rast to testify at trial, but just prior to trial replaced her with a substitute expert―forensic scientist Greggory Longoni. Although Longoni had not participated in testing involving this case, the state indicated that he would testify to the “same conclusion” as Rast. “Longoni prepared for trial by reviewing Rast’s report and notes. And when Longoni took the stand, he referred to those materials and related what was in them, item by item by item.” He testified about Rast’s scientific methods used to analyze each substance and that her “testing had adhered to ‘general principles of chemistry’” and “’the lab’s policies and practices.’” From those records, Longoni then “offered an ‘independent opinion’” identifying the substances as usable quantities of methamphetamine, marijuana, and cannabis.
After conviction, Smith appealed, claiming that the admission of Longoni’s testimony violated his Confrontation Clause rights. The Arizona Court of Appeals affirmed Smith’s conviction, rejecting his Confrontation Clause challenge. Relying on Arizona precedent, the court held that Longoni could, consistent with the Constitution, testify to “‘the substance of a non-testifying expert’s analysis, if such evidence forms the basis of the [testifying] expert’s opinion.’ That is because, the Arizona courts have said, the ‘underlying facts’ are then ‘used only to show the basis of [the in-court witness’s] opinion and not to prove their truth.’” In an opinion by Justice Kagan, the Court vacated and remanded.
The Court described its Confrontation Clause precedents following its landmark holding in Crawford v. Washington, 541 U.S. 36 (2004). In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Court held that under the Confrontation Clause “a prosecutor cannot introduce an absent laboratory analyst’s testimonial out-of-court statements to prove the results of forensic testing.” And in Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Court held that “surrogate testimony” by a substitute lab analyst also violates the Clause. Still, the Court noted, “the Clause bars only the introduction of hearsay―meaning, out-of-court statements offered ‘to prove the truth of the matter asserted.’” Thereafter in Williams v. Illinois, 567 U.S. 50 (2012), the Court considered whether, consistent with the Confrontation Clause, one lab analyst may, while “on the way to stating her own conclusions” as an expert, testify as to what another lab analyst had found. Although the decision was fractured and did not produce a majority opinion, five Justices agreed “that basis evidence is generally introduced for its truth.”
And so, said the Court here, the starting point in this case is this: “Smith’s confrontation claim can succeed only if Rast’s statements came into evidence for their truth.” Evidentiary rules do not control this inquiry. “Instead, [a court must] conduct an independent analysis of whether an out-of-court statement was admitted for its truth.” When it comes to the kind of “basis testimony” that was presented in this case, “truth is everything.” If a prosecution expert “conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what is asserts.” In other words, “the truth of the basis testimony is what makes it useful to the prosecutor” in the first place. Indeed, a “jury cannot decide whether the expert’s opinion is credible without evaluating the truth of the factual assertions on which it is based.” “If believed true, that basis evidence will lead the jury to credit the opinion; if believed false, it will do the opposite.” Ultimately, this creates a Confrontation Clause problem because “the defendant has no opportunity to challenge the veracity of the out-of-court assertions that are doing much of the work.”
The Court found that this case presented a prime example. “Rast’s statements . . . came in for their truth, and no less because they were admitted to show the basis of Longoni’s expert opinions. All of those opinions were predicated on the truth of Rast’s factual statements. Longoni could opine that the tested substances were marijuana, methamphetamine, and cannabis only because he accepted the truth of what Rast had reported about her work in the lab[.]” The truth of the statements upon which Longoni relied “propped up” the state’s entire case, yet Smith was unable to cross-examine the maker of those statements.
The Court added that “the Clause still allows forensic experts like Longoni to play a useful role in criminal trials. Because Longoni worked in the same lab as Rast, he could testify from personal knowledge about how that lab typically functioned—the standards, practices, and procedures it used to test seized substances, as well as the way it maintained chains of custody. (Indeed, Longoni did just that in a different part of his testimony.) Or had he not been familiar with Rast’s lab, he could have testified in general terms about forensic guidelines and techniques—perhaps explaining what it means for a lab to be accredited and what requirements accreditation imposes. Or as the Williams plurality and dissent both observed, he might have been asked—and could have answered—any number of hypothetical questions, taking the form of: “If or assuming some out-of-court statement were true, what would follow from it?”
All that was sufficient to resolve this case, resulting in the vacatur and remand to the lower court. But in Part III of the Court’s decision (which Justices Thomas and Gorsuch did not join), the Court addressed but did not resolve whether Rast’s out-of-court statements that “Longoni conveyed were testimonial.” To answer this question, said the Court, a court must consider the statement’s “primary purpose” and “how it relates to a future criminal proceeding.” Here, however, the Court did not need to resolve this issue because it was not considered by the lower state court, and it was outside of Smith’s question presented. The Court did, however, “offer a few thoughts” as to questions the state court might address on remand on that issue. “First, the court will need to consider exactly which of Rast’s statements are at issue,” as “the parties disputed whether Longoni was reciting from Rast’s notes alone, or from both her notes and final report.” Next, “[i]n then addressing the statements’ primary purpose—why Rast created the report or notes—the court should consider the range of recordkeeping activities that lab analysts engage in. After all, some records of lab analysts will not have an evidentiary purpose.” (Citations omitted.)
Justice Thomas concurred in all but Part III of the Court’s opinion. He wrote separately to reiterate his “view that the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” (Internal quotation marks omitted.) Trying to “divine a statement’s ‘primary purpose,’” he explained, was the wrong inquiry. Instead, a court should consider “whether statements at issue have the requisite formality and solemnity to qualify as testimonial.” Justice Gorsuch also concurred in all but Part III of the Court’s opinion. He criticized the majority’s unnecessary guidance on the issue of “when an absent analyst’s statement might qualify as ‘testimonial’” and suggested that the primary purpose test should be more carefully explored in the proper case (e.g., what constitutes a “witness” or “bear[ing] testimony,” whose “purpose” is the relevant focus, which “purpose” is the primary one where several exist).
Justice Alito, joined by Chief Justice Roberts, concurred in the judgment but disagreed with the majority’s core holding. For decades, Justice Alito said, “the Federal Rules of Evidence and similar state rules have reasonably allowed experts to disclose the information underlying their opinion.” In this case, however, the Court “inflict[ed] a needless, unwarranted, and crippling wound on modern evidence law” by disposing of this rule and instead resuscitating the requirement for expert witnesses “to express their opinions as responses to hypothetical questions.” Justice Alito stated that “[w]hat makes basis evidence ‘useful’ is the assistance it gives the fact-finder in judging the weight that should be given to the expert’s opinion. And a trial judge must, upon request, instruct the jury to consider it only for that purpose.” (Citation omitted.) He criticized the Court found failing to believe that juries could abide by limiting instructions.
This explosive move was unnecessary, Justice Alito lamented. That is because the expert’s witness testimony in this case was “hearsay under any mainstream conception, including that of the Federal Rules of Evidence.” Here, Longoni testified to the truth of the matter asserted when he “stated as fact that Rast followed the lab’s ‘typical intake process,’” that she “complied with the ‘policies and practices’ of the lab,” and that she “used certain ‘scientific method[s]’ to analyze the samples, such as performing certain tests or running a ‘blank.’” Thus, “[b]y asserting these facts as true, Longoni effectively entered inadmissible hearsay into the record, thus implicating the Confrontation Clause. The Court could have said that―and stopped right there.”
Texas v. New Mexico, 141 Original.
This case concerned the Rio Grande Compact, which apportions the upper part of the Rio Grande among Texas, New Mexico, and Colorado. In 2014, the Court allowed Texas to file an original action against New Mexico alleging breach of the Compact. The Court later allowed the United States to intervene and pursue its own Compact claims against New Mexico. By a 5-4 vote, the Court sustained the United States’ exception to the Special Master’s recommendation that the Court enter a consent decree, over the United States’ objection, that “would resolve this case and codify a methodology for determining each State’s allocation of the Rio Grande’s waters.”
In 1906, the United States and Mexico settled a dispute over use of the Rio Grande waters, with the U.S. promising to provide Mexico 60,000 acre-feet of Rio Grande water each year. “To deliver on that promise,” the Federal Government constructed a reservoir and dam at Elephant Butte in New Mexico, about 100 miles north of the Texas-New Mexico border. This is known as the Rio Grande Project and is operated by the U.S. Bureau of Reclamation. The United States then entered a series of agreements with two irrigation districts in New Mexico (EBID) and Texas (EP1) under which the United States would deliver apportionments of water to two political subdivisions. To resolve disputes to competing water-rights claims of Texas, New Mexico, and Colorado, the states entered into the Rio Grande Compact in 1938. The Compact required Colorado to deliver a set amount of water to the New Mexico border, and directed New Mexico to deliver water to the Elephant Butte reservoir. The Compact then relied on the Federal Government’s contracts with the two irrigation districts to apportion water downstream of the reservoir. Complications arose, however, when droughts in the 1930s led to increased groundwater pumping by entities in southern New Mexico. Because of “return flows” of water, “the more groundwater pumping between the Elephant Butte Reservoir and Texas, the more water Reclamation has to release from the reservoir to comply with its delivery obligations. Reclamation dealt with these changing circumstances by developing an equation known as the D2 Curve. Using Project data from 1951 to 1978—the so-called D2 Period that witnessed New Mexico’s ramped-up groundwater pumping—Reclamation devised a linear regression model to help it predict how much water would be available to EBID and EP1 based on a given release of water from the Elephant Butte Reservoir.”
In 2013, Texas filed an original action against New Mexico alleging “that New Mexico was violating the Compact by permitting local entities to pump groundwater at levels exceeding those contemplated in 1938, intercepting water bound for the Lone Star State.” In 2018, the Court allowed the United States to intervene, holding that “the federal government has an interest in seeing that water is deposited in the [Elephant Butte] Reservoir consistent with the Compact’s terms,” as that “is what allows the United States to meet its duties under the Downstream Contracts, which are themselves essential to the fulfillment of the Compact’s expressly stated purpose.” Litigation before the Special Master continued, but eventually Texas and New Mexico negotiated a proposed consent decree, compliance with which would constitute compliance with the Compact. “The centerpiece of the proposed consent decree would be the establishment of the Effective El Paso Index (EEPI), a new method of determining the allotment of Rio Grande water New Mexico must deliver downstream into Texas. The EEPI’s calculations of water allocations would be based on conditions during the D2 Period, when New Mexico was actively depleting return flows through groundwater pumping. . . .The EEPI would then rely on the El Paso Gage, a flow indicator near the New Mexico-Texas border, to measure New Mexico’s delivery of water into Texas. Finally, the consent decree would require Reclamation to transfer water between EBID and EP1 as needed to maintain a specified allotment.” The United States objected to the decree and argued that the Special Master could not approve it without its consent. The Special Master disagreed, and issued a report recommending that the Court approve the consent decree. The United States filed an exception to the Report. In an opinion by Justice Jackson, the Court sustained the United States’ exception.
The Court first set out “the rules that apply when parties wish to settle via consent decree over the objection of a nonconsenting intervenor.” In Firefighters v. Cleveland, 478 U.S. 501 (1986), the Court held that “when the parties’ settlement would also affect the intervenors’ claims, . . . parties ‘who choose to resolve litigation through settlement may not dispose of the claims of a third party . . . without that party’s agreement.’” That meant that the issue here was “whether the United States has valid Compact claims and whether the proposed consent decree would dispose of those claims.” The Court answered both questions yes.
On the first question, the Court stated that “the same considerations that convinced us to let the United States intervene six Terms ago also lead us to conclude that the United States still has valid Compact claims today.” In its 2018 decision, the Court set out “several considerations” that persuaded it to allow the United States to intervene. Among them were that (1) “’the Compact is inextricably intertwined with the Rio Grande Project and the Downstream Contracts,’ both carried out by the Federal Government”; (2) “’the United States plays an integral role in the Compact’s operation’ and so had its own interests in this litigation”; and (3) the Federal Government has obligations to Mexico under the 1906 treaty. The Court concluded here that “[t]he United States has its own, uniquely federal claims under the Compact. If it did not, one might wonder why we permitted the Federal Government to intervene in the first place.” And that is “all but dispositive of the States’ arguments that the United States lacks valid Compact claims today.”
The Court rejected the states’ contention “that the United States has no valid Compact claims because it does not itself receive an apportionment of water under the Compact.” That was also true in 2018. The Court rejected the states’ contention “that the United States failed to allege a ‘1938 baseline,’” saying that the 2018 decision recognized that “the United States asserted ‘essentially the same claims Texas already has,’” and Texas had asserted a 1938 baseline. And the Court rejected the states’ reliance on two of the Court’s precedents, Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938), and California v. United States, 438 U.S. 645 (1978).
Next, the Court concluded that the consent decree would dispose of the United States’ valid Compact claims. “The United States maintains that New Mexico’s pumping breaches that State’s alleged duty under the Compact not to interfere with the Project. And the United States seeks an injunction against New Mexico that would prohibit that interference. The proposed consent decree, however, would dispose of that legal claim and the associated prayer for relief without addressing the United States’ contentions, as it neither imposes the duty of noninterference that the United States seeks nor enjoins New Mexico from allowing groundwater pumping beyond 1938 levels. To the contrary, the consent decree would incorporate New Mexico’s groundwater pumping into the Compact by adopting a new method for apportioning Rio Grande water—the EEPI.” (Citations omitted.) Thus, “[w]ere the consent decree adopted, the United States would be precluded from claiming what it argues now—that New Mexico’s present degree of groundwater pumping violates the Compact. Indeed, the consent decree would settle that question by deeming New Mexico compliant with the Compact, even as it allows pumping at the D2 levels.” Responding to the states’ (and the dissent’s) arguments, the Court said that merely because “Texas has chosen to compromise does not mean that, by staying the course, the United States is expanding this action. What is more, the Court was well aware in 2018 that the States’ interests might diverge from those of the United States.” Finally, the Court disagreed with the states that “the Federal Government’s qualms with New Mexico’s groundwater pumping pose only ‘an intrastate dispute between that United States and New Mexico’ that is better left to existing litigation in other courts.”
Justice Gorsuch filed a dissenting opinion, which Justices Thomas, Alito, and Barrett joined. Justice Gorsuch said that “two considerations guide [the Court’s] decisionmaking” on whether to approve a proposed consent decree: (1) “whether the decree is ‘consistent with the compact itself’”; and (2) “whether the decree purports to bind third parties the States have no authority to represent.” Justice Gorsuch found that both considerations militate in favor of the proposed consent decree. First, he found that “the decree is consistent with the Compact.” “In their settlement, the States propose to calculate” the minimum amount of water to which Texas is entitled “by reference to the D2 Period and measure it at a water gauge at El Paso. Both terms are entirely appropriate. The States have relied on the D2 Period for decades. And in making distributions to those States’ water districts pursuant to the Downstream Contracts, so has the federal government. . . . All agree, too, that the Compact expressly authorizes representatives from each compacting State to choose gauge locations. So use of the El Paso gauge is consistent with the Compact as well.” (Citations omitted.)
Second, Justice Gorsuch found that “the consent decree does not impose any new improper duty or obligation on the federal government or deny it the ability to pursue any valid claim it may have. . . . [A]gain, the federal government has employed the D2 Period to measure the water it distributes for decades, and it has long maintained the El Paso gauging station. The government cannot sensibly suggest that it would be improper to require it to continue doing as it has long done.” And, “to the extent the federal government thinks it has any independent claims of its own, the Special Master recommends dismissing them without prejudice. That is ‘an entirely appropriate’—and our long-preferred—’means of resolving whatever questions remain’ after the resolution of an interstate dispute.”
The dissent then responded to the majority’s reasoning. Among other things, Justice Gorsuch stated that “the majority struggles to spell out how the government might possibly hold Compact claims in its own right—that is, independent of the States’ claims.” And he disagreed that the Court’s 2018 decision allowing the United States to intervene makes all the difference. There, “the federal government asked us not to ‘reach’ the question whether it could independently bring claims of its own under these theories or any others.” Further, “the government has never pleaded the existence of a 1938 baseline. Instead, when it sought to intervene, the government took just the opposite view, arguing that its longstanding use of the D2 Period was consistent with the Compact. Allowing the government to reverse course now is not required by anything in Texas I.” (Citations omitted.) The dissent closed by saying: “Where does that leave the States? After 10 years and tens of millions of dollars in lawyers’ fees, their agreement disappears with only the promise of more litigation to follow. All because the government won’t accept a settlement providing it with everything it once sought, and now seeks to promote the use of an alternative 1938 baseline that no party seeks and New Mexico represents could cost it tens of thousands of jobs and a large segment of the State’s economy. ‘[C]ooperative federalism’ that is not.”
Department of State v. Munoz, 23-334.
By a 5-1-3 vote, the Court held that a citizen does not have an unenumerated constitutional right to bring her noncitizen spouse to the United States. Sandra Muñoz, an American citizen, married Luis Asencio-Cordero, a Salvador citizen, in 2010. They hoped to have Asencio-Cordero become a legal resident of the United States, and so Muñoz filed a petition to classify her husband as an immediate relative. After the U.S. Citizenship and Immigration Service (USCIS) granted the petition, Asencio-Cordero returned to El Salvador to submit his visa application. A consular officer denied Asencio-Cordero’s application under a statutory provision rendering inadmissible a noncitizen whom the officer believes seeks to enter the United States to engage in unlawful activity. The consulate refused to reconsider, as did the State Department. Asencio-Cordero and Muñoz sued the State Department and others (collectively, the State Department) alleging, among other things, “that the State Department had abridged Muñoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why Asencio-Cordero is inadmissible under the ‘unlawful activity’ bar.” The district court ordered discovery, during which a State Department attorney adviser “explained that Asencio-Cordero was deemed inadmissible because he belonged to MS–13. The finding was ‘based on the in-person interview, a criminal review of . . . Asencio[-]Cordero, and a review of [his] tattoos.’” Based on that and other information, the district court granted summary judgment to the State Department. The Ninth Circuit vacated the judgment and remanded. “[I]t held that Muñoz, as a citizen, had a constitutionally protected liberty interest in her husband’s visa application. Because of that interest, the Ninth Circuit said, the Due Process Clause required the State Department to give Muñoz a ‘facially legitimate and bona fide reason’ for denying her husband’s visa.” And it concluded that the statutory citation and affidavit did not suffice. “The panel remanded for the District Court to consider the merits of Muñoz’s suit, which include a request for a declaration invalidating the finding that Asencio-Cordero is inadmissible and an order demanding that the State Department readjudicate Asencio-Cordero’s application.” In an opinion by Justice Barrett, the Court reversed and remanded.
The Court began by describing the doctrine of consular nonreviewability, under which federal courts may not review a consular officer’s denial of a visa. The Court has “assumed a narrow exception to this bar exists ‘when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.’ In that event, the Court has considered whether the Executive gave a ‘facially legitimate and bona fide reason’ for denying the visa.” (Citation omitted.) The Court explained that “Asencio-Cordero cannot invoke the exception himself, because he has no ‘constitutional right of entry to this country as a nonimmigrant or otherwise.’” And so the issue became whether Muñoz, as an American citizen, could show “that the denial of her husband’s visa violated her constitutional rights, thereby enabling judicial review. Specifically, she argues that the State Department abridged her fundamental right to live with her spouse in her country of citizenship—and that it did so without affording her the fair procedure guaranteed by the Fifth Amendment.” The Court held that the answer is no: “[A] citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”
The Court relied on the two-step inquiry set out in Washington v. Glucksberg, 521 U.S. 702 (1997), for determining the existence of unenumerated fundamental constitutional rights. The first step is a “‘careful description of the asserted fundamental liberty interest.’” The second step “stresses that ‘the Due Process Clause specially protects’ only ‘those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.’” Applied here, the Court struggled with the first step, finding it “difficult to pin down the nature of the right Muñoz claims.” She described it as “a ‘marital right . . . sufficiently important that it cannot be unduly burdened without procedural due process as to an inadmissibility finding that would block her from residing with her spouse in her country of citizenship.’” The Court found it unnecessary to decide whether that type of right exists “because Muñoz cannot clear the second step of Glucksberg’s test: demonstrating that the right to bring a noncitizen spouse to the United States is ‘deeply rooted in this Nation’s history and tradition.’” “On the contrary,” stated the Court, “the through line of history is recognition of the Government’s sovereign authority to set the terms governing the admission and exclusion of noncitizens. And Muñoz points to no subsidiary tradition that curbs this authority in the case of noncitizen spouses.”
The Court then walked through that history, starting with an 1800 report characterizing the admission of noncitizens into the country as “of favor [and] not of right.” And while the “United States had relatively open borders until the late 19th century, . . . once Congress began to restrict immigration, ‘it enacted a complicated web of regulations that erected serious impediments to a person’s ability to bring a spouse into the United States.’” The Court acknowledged that “Congress has made it easier for spouses to immigrate,” but emphasized that “it has never made spousal immigration a matter of right.” And in particular, “Congress has not exempted spouses from inadmissibility restrictions like the INA’s unlawful-activity bar.” The Court pointed to United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), as reaffirming that principle. Finally, the Court held that a case upon which the Ninth Circuit relied―Kleindienst v. Mandel, 408 U.S. 753 (1972)―is not to the contrary. “Whatever else it may stand for, Mandel does not hold that a citizen’s independent constitutional right (say, a free speech claim) gives that citizen a procedural due process right to a ‘facially legitimate and bona fide reason’ for why someone else’s visa was denied. And Muñoz is not constitutionally entitled to one here.”
Justice Gorsuch filed an opinion concurring in the judgment. He observed that, “[o]ver the course of this litigation, the United States has given Ms. Muñoz what she requested,” namely, the factual predicates upon which the State Department relied in rejecting her husband’s visa application. Further, the Government told the Court that Muñoz “can again seek her husband’s admission to this country . . . ―and this time she will be armed with an understanding of why the government denied the last application.” Thus, asserted Justice Gorsuch, there is “nothing [] left for a court to address through this litigation.” He “therefore would reverse the Ninth Circuit’s decision without reaching the government’s constitutional arguments.”
Justice Sotomayor filed a dissenting opinion, which Justices Kagan and Jackson joined. She stated that, “[d]espite the majority’s assurance two Terms ago that its eradication of the right to abortion ‘does not undermine . . . in any way’ other entrenched substantive due process rights such as ‘the right to marry,’ ‘the right to reside with relatives,’ and ‘the right to make decisions about the education of one’s children,’ the Court fails at the first pass. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 256–257 (2022). Because, to me, there is no question that excluding a citizen’s spouse burdens her right to marriage, and that burden requires the Government to provide at least a factual basis for its decision[.]” Justice Sotomayor agreed with Justice Gorsuch that the Court “could and should” have resolved the case on the ground that Muñoz received what she had asked for. “Instead, the majority swings for the fences.”
Justice Sotomayor went on to describe the constitutional right to marry, the recognition of which culminated in Obergefell v. Hodges, 576 U.S. 644 (2015). She then faulted the majority for “requiring too ‘careful [a] description of the asserted fundamental liberty interest.’” “This Court has never required that plaintiffs be fully prevented from exercising their right to marriage before invoking it. Instead, the question is whether a challenged government action burdens the right.” Here, she found, the Government has done so “by excluding her husband from the country.” That leads to the question of remedy. She concluded that under Mandel and Turner v. Safley, 482 U.S. 78 (1987), “[t]he Government’s exclusion of Muñoz’s husband entitles her at least to the remedy required in Mandel: a ‘facially legitimate and bona fide reason’ for the exclusion.” True, Justice Sotomayor said, “[a] ‘facially legitimate and bona fide’ reason may seem like a meager remedy for burdening a fundamental right. Yet even the barest explanation requirement can be powerful.”
Erlinger v. United States, 23-370.
By a 6-3 vote, the Court held that the Fifth and Sixth Amendments require a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(1). In 2017, the Government charged Paul Erlinger of being a felon in possession of a firearm in violation of 18 U.S.C. §922(g). It sought to increase his sentence to 15 years by also charging him under ACCA. A defendant with three prior convictions for “violent felon[ies]” that were “committed on occasions different from one another” are subject to a minimum of 15 years and a maximum of life. The Government pointed to Erlinger’s long-ago convictions for burglarizing a pizza shop, a sporting goods store, and two restaurants over the span of days. The Government claimed that these burglaries occurred on different occasions within the meaning of ACCA. Erlinger countered that the offenses occurred during a single criminal episode. The district court denied Erlinger’s request that a jury make that assessment, and then found for itself that each of those burglaries occurred on distinct occasions. The court therefore imposed a 15-year sentence. On appeal, the Government confessed error and agreed that a jury had to decide beyond a reasonable doubt whether Erlinger’s prior offenses were “committed on occasions different from one another.” The Seventh Circuit nonetheless affirmed Erlinger’s sentence. In an opinion by Justice Gorsuch, the Court vacated and remanded.
The Court began by noting the importance the colonists and Framers placed on the right to trial by jury, culminating in the Sixth Amendment right to a jury trial in all criminal cases and the Fifth Amendment right to due process of law, which requires that the government prove its case to that jury beyond a reasonable doubt. The Court then discussed Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), which require that “‘[a] fact that increases’ a defendant’s exposure to punishment, whether by triggering a higher maximum or minimum sentence, must ‘be submitted to a jury’ and found unanimously and beyond a reasonable doubt.” The Court then applied that rule to the question whether, under ACCA, prior offenses were “committed on occasions different from one another.” In Wooden v. United States, 595 U.S. 360 (2022), the Court held that the different-occasions inquiry “is a fact-laden task.” Wooden said relevant questions were whether the crimes were “committed close in time”; in close “[p]roximity” to each other; and were “similar or intertwined” in purpose and character. All of those questions, the Court said here, “require facts to be found before ACCA’s more punitive mandatory minimum sentence may be lawfully deployed.” And that means, the Court held, that the Apprendi and Alleyne rule fully applies.
The Court rejected the arguments of the dissent and the amicus appointed by the Court to defend the judgment below. In particular, amicus relied on Almendarez-Torres v. United States, 523 U.S. 224 (1998), which remains an exception to the Apprendi rule and allows a judge to find the fact of a prior conviction, even if a prior conviction triggers a higher sentence. The Court pointed to criticisms of Almendarez-Torres, but noted that no party asked the Court to revisit it. Still, it did not change the result here because the “Court has expressly delimited its reach” to allow “judges to find only ‘the fact of a prior conviction.’” “And so understood, Almendarez-Torres does nothing to save the sentence in this case” because “the district court had to do more than identify [Erlinger’s] previous convictions and the legal elements required to sustain them. It had to find that those offenses occurred on at least three separate occasions. And, in doing so, the court did more than Almendarez-Torres allows.”
The Court acknowledged that, “[t]o conduct the narrow inquiry Almendarez-Torres authorizes, a court may need to know the jurisdiction in which the defendant’s crime occurred and its date in order to ascertain what legal elements the government had to prove to secure a conviction in that place at that time. And to answer those questions, a sentencing court may sometimes consult ‘a restricted set of materials,’ often called Shepard documents, that include judicial records, plea agreements, and colloquies between a judge and the defendant.” But “[n]one of that,” said the Court, “means that a court may use Shepard documents or any other materials for any other purpose.” The Court added that often “Shepard documents will not contain all the information needed to conduct a sensible ACCA occasions inquiry”; and that Shepard documents “can be ‘prone to error’”―which “counsel caution in the use of Shepard documents.” Nor does it matter, held the Court, that the different-occasions inquiry might sometimes be “straightforward.” “There is no efficiency exception to the Fifth and Sixth Amendments.” Next, amicus argued that “[p]roperly understood, . . . the Fifth and Sixth Amendments’ original meaning and ‘deep’ common-law traditions authorize judges at sentencing to find all manner of facts about an offender’s past crimes.” The Court disagreed, saying it already rejected that contention in Apprendi and later decisions. Finally, amicus argued that defendants might be prejudiced by placing the details of the defendants’ past crimes before the jury. The Court found that “a court can bifurcate the proceedings” to address that concern.
Chief Justice Roberts filed a one-paragraph concurring opinion to note that violations of the Fifth and Sixth Amendment rights, as occurred here, are subject to harmless-error review. Justice Thomas also filed a short concurring opinion to express his view that the Court should revisit and overrule Almendarez-Torres in an appropriate case.
Justice Kavanaugh filed a dissenting opinion, which Justice Alito joined and which Justice Jackson joined in part. In his view, “Almendarez-Torres resolves the question of whether a judge may decide if the defendant committed his prior violent offenses on different occasions. In that case, the Court squarely held that either a judge or a jury may apply sentence enhancements based on ‘recidivism.’” He maintained that “[t]hat principle encompasses the different-occasions inquiry. . . . Like the statute in Almendarez-Torres, recidivism statutes often require a decisionmaker to determine the who, what, when, and where of prior offenses.” Justice Kavanaugh disagreed with the majority that the Court had “expressly delimited” Almendarez-Torres’ reach. Justice Kavanaugh next insisted (in a section not joined by Justice Jackson) that any error here was harmless: “There can be no reasonable doubt that Erlinger committed three burglaries ‘on occasions different from one another.’” Justice Kavanaugh spent the final section of his dissent explaining why he believed Almendarez-Torres was correct; at the very least “is not egregiously wrong”; and should not be overruled based on the other stare decisis factors as well.
Finally, Justice Jackson filed a lengthy dissenting opinion in which she argued that Apprendi and its progeny were wrongly decided. She maintained that “Apprendi and its ilk have [] needlessly hampered Congress’s and state legislatures’ pursuit of a fairer and more rational sentencing system”; that “the Court made a serious mistake when it conflated elements and sentencing factors”; that the Constitution “’does not freeze 19th-century sentencing practices into permanent law’”; and that there is no “functional, policy-based justification for the constitutional rule that Apprendi and its progeny enshrined.” Justice Jackson continued, “[m]ost notably for present purposes, Apprendi has prevented legislatures from developing innovative methods to achieve fairness in sentencing and thus, in my view, has stunted our collective pursuit of justice.” Turning to the issue here, Justice Jackson added that “the particular factfinding determination that the occasions inquiry requires is unsuitable for juries to decide in terms of both fairness and efficiency—two crucial criteria for procedural requirements in a criminal justice system.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Melissa Patterson, Supreme Court Fellow
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