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  • Writer's pictureElizabeth Slattery

Oral argument recap: 11/29/23

As the rest of us emerged from a turkey-induced stupor, the justices were back in action with oral arguments in four cases. To get the full details on each case, check out Anastasia's preview from last. Here are some of the highlights from this week's arguments.


On Monday, the Court heard two consolidated cases, Brown v. United States and Jackson v. United States, involving the definition of a “serious drug offense” under the Armed Career Criminal Act (ACCA). Is it just me or does it seem like the Court hears more cases involving ACCA than just about any other statute? Perhaps there's work for Congress to do.

As Anastasia ably explained last week, ACCA mandates a 15-year minimum sentence for felon possession of a firearm when that person has been convicted of three “serious drug offenses.” State convictions qualify as "serious drug offenses" when they match or are narrower than a federal counterpart.

But what's a court to do if Congress changes the law between conviction for a state offense and sentencing under ACCA for possession of a firearm? Compare the prior state conviction with federal law at time of federal firearm sentencing or at time of the federal firearm offense? That's what the justices endeavor to decide in Brown and Jackson.

At the oral argument, there was a lot of back and forth over whether there's a notice problem lurking in ACCA. Are defendants aware of the future implications of their possibly-serious state drug offenses? The attorney for the United States argued that individuals "who ha[ve] trafficked in a federally controlled substance" are "highly aware" of and "very interested in their federal exposure" even at the time of a state prosecution. They know about the potential for a sentencing enhancement "one minute after that third conviction, if they possess a gun." Thus, the 15-year minimum sentence acts as a serious deterrent.

Jackson's lawyer begged to differ, pointing out that people who are being prosecuted for an offense that may qualify as their first "serious drug offense" are "not thinking about ACCA. Their lawyers do not have to advise them about ACCA. People are just dealing with the state case at that time."

Another issue that came up repeatedly was the administrability problem of having to go back in time to cross-reference out-of-date federal drug schedules and old state code sections. Some of the justices were less than sympathetic to the defendants here. Chief Justice Roberts wondered if they've heard of the Internet. "It's apparently, it's all online."

Justice Kavanaugh brought the discussion back to the whole point of the statute.

This point dovetailed nicely with the following from Justice Jackson:

Something tells me that however this case turns out, it won't be the last the justices hear about ACCA.


On Tuesday, the justices pulled double duty. First up was McElrath v. Georgia. Cribbing from Anastasia's preview:

Damian McElrath was tried under Georgia law for malice murder, aggravated assault, and felony murder. The jury found him not guilty of malice murder by reason of insanity, but guilty (though mentally ill) of felony murder and aggravated assault. McElrath appealed, arguing that the verdicts were not just inconsistent, they were “repugnant” (ie. mutually incompatible), since the jury found him insane for purposes of one crime and not insane for purposes of another. Inconsistent verdicts are permitted under Georgia law; repugnant verdicts are not.

The Georgia Supreme Court vacated both verdicts for being repugnant and sent the case back for retrial. But McElrath argues that, with respect to the malice murder charge, a retrial violates the Double Jeopardy Clause because he was already tried and acquitted. The Supreme Court has long ruled that the Double Jeopardy Clause is absolute and that acquittals are final and unreviewable.

At the oral argument, there was a lot of discussion about what should count as a verdict. But two exchanges with Georgia's solicitor general summed up the tone of the argument. First up, Justice Thomas:

Justice Thomas did not appear to buy this argument, observing that "the problem is that up to that point, until you void the verdict, you have what constitutes a verdict . . . and I don't know how you get around th[at] notion."

Later, the solicitor general distinguished a general verdict ("one of the most sacrosanct things in American constitutional law") from a circumstance where a jury issues special findings (like this very one!), and Justice Gorsuch butted in with this:

The second case was Wilkinson v. Garland, involving the reviewability of certain decisions that come up in immigration removal proceedings. The justices grappled with whether a Board of Immigration Appeals’ determination that a set of facts does not qualify as “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable by federal courts.

Jaime Santos (of #appellatetwitter fame) made her SCOTUS debut, arguing on behalf of Wilkinson. You can peruse the argument transcript  you'll laugh, you'll cry, you'll learn a thing or two about immigration law.

George Santos balloon floats outside Capitol
But she wasn't the only Santos on Capitol Hill that day (photo credit: The Hill).


Enemies of the Administrative State, unite. It's Hamm(burg)er time. Rounding out the week was a supersized argument in Securities and Exchange Commission v. Jarkesy (clocking in at nearly two and a half hours!).

MC Hammer with burger battles bureaucrats
Anastasia's on vacation and left me in charge of AI photo generation. I present "MC Hammer burger battle with bureaucrats." How'd I do?

As a refresher, this case challenges the SEC's relatively new power to seek civil penalties for securities fraud from any person, not just those regulated by the SEC. The Commission prosecuted Jarkesy for securities fraud in its in-house tribunal, rather than bringing suit in federal court. The lower court held that this in-house proceeding seeking civil penalties violated the Seventh Amendment. For those who don't have a pocket Constitution handy, the Seventh Amendment guarantees the right of trial by jury in “Suits at common law.”

There are two other issues before the Court involving improper delegation of legislative power to the Executive Branch and limits on removal of administrative law judges. The justices didn't ask a single question about the former, and only Justice Kavanaugh asked a question or two about the latter. The Seventh Amendment issue dominated the argument.

Justice Thomas asked the first question. He wanted to know how the government defines public rights. It's an important question because a 1977 ruling, Atlas Roofing Co. v. Occupational Safety and Health Review Commission, said Congress may allow agencies to adjudicate violations of new statutory "public rights" in an administrative tribunal, rather than a federal court, without violating the Seventh Amendment. Cases implicating private rights (i.e. where an individual may be deprived of his liberty or property), though, trigger the Seventh Amendment.

Later cases limited Atlas Roofing (e.g. Tull v. United States found some Clean Water Act civil penalties the trigger the Seventh Amendment and Granfinanciera, S.A. v. Nordberg held Congress can't circumvent the Seventh Amendment by assigning traditional legal claims to an administrative tribunal), but it's still on the books and Jarkesy hasn't asked the Court to overturn it.

Brian Fletcher, the attorney for the government, defined public rights as "when the federal government, an agency, is enforcing a federal statute in its exercise of its sovereign powers, that's a matter involving public rights."

The attorney for Jarkesy, Michael McColloch, offered a different spin: public rights are things that "are of or belong to the government" and extend to "claims that are between an individual and the government only." He rattled off a list of examples: customs, immigration, benefits, franchises, permissions, debts to the government, and taxes. He maintained that the enforcement action against Jarkesy was essentially a common law fraud action, seeking to impose civil penalties, which would deprive him of his property.

Another bone of contention was when the Seventh Amendment jury right attaches (as we say in the biz). Fletcher said the right "has always depended on the nature of the forum and the nature of the cause of action. By its terms, it applies to suits at common law."

This kicked off an extended colloquy between Justice Gorsuch and Fletcher. Justice Gorsuch asked if the right would attach if the government sought the same penalities in a criminal proceeding, instead of an in-house adjudication. At first, Fletcher offered the classic lawyer response: "it depends." He eventually agreed that a jury would be required in a felony fraud case where there's the possibility of jail time and criminal penalties.

But Fletcher doubled down on his argument that the forum (i.e. in-house proceeding or federal court) dictates whether the Seventh Amendment protection applies. If it's an administrative proceeding, he maintained, it cannot be a "suit at common law" requiring a jury trial. That seemed problematic to Justice Barrett, when the agency can choose between in-house adjudication and federal court.

If you're entitled to a jury in one circumstance, why not in the other? Fletcher replied that if the matter is properly assigned to an agency and involves a public right, "then the Seventh Amendment doesn't impose additional constraints."

Justice Gorsuch returned to this point, armed with his trusty dictionary (but was it Webster's Second, or <<shudder>> Webster's Third edition?).

Justice Kavanaugh asked why in previous cases involving two private parties, rather than the government and a private party, the "full constitutional protections apply . . . but we're going to discard those core constitutional historic protections when the government comes at you for the same money?" Justice Alito picked up this thread later, wondering "what sense does it make to say you have this protection when you're being sued by a private party, whose resources are certainly going to be more limited than the resources of the federal government, but when the same thing happens to you and the party that's against you is the federal government, well, this right to a jury trial simply goes out the window. Does that make sense?"

At one point in the argument, Justice Sotomayor asked McColloch about the scope of the problem and consequences for other agencies if the Court rules for Jarkesy. But she observed . . .

The more than two hours of argument seemed to leave the justices with more questions than answers. Many clearly think something's not quite right with the SEC regime, but how that will translate into a majority opinion remains an open question. At least one matter was resolved: how to pronounce George Jarkesy's name. It's Jar-ka-see, not Jar-kay-see, Jark-see, or any other variation you may have heard.

That's all for now. I'll leave you with a photo just before my favorite moment of the week, which was moving my friend and colleague's admission to the Supreme Court bar. Congrats, Joe Luppino-Esposito!

Two people outside of the Supreme Court
I am satisfied he possesses the necessary qualifications. #iykyk


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