With apologies to Dorothy and with uncertainty about just which Justices should be cast as the Tin Man, Scarecrow and Cowardly Lion, the title of this post is meant in part to reflect how I am feeling overwhelmed trying to process the results and votes in three big federal criminal justice cases over the last three workdays, namely Gundy v. US, 17-6086 (S. Ct. June 20, 2019) (available here; discussed here), Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here), and US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here).
Beyond being overwhelmed by 150+ pages of dense SCOTUS text, I am also struck by my sense that so many of the Justices in these cases have had their opinions shaped by the likely or feared results of a ruling one way or another. To this end, this passage from the majority opinion penned by Justice Gorsuch today in Davis caught my eye:
In the end, the dissent is forced to argue that holding §924(c)(3)(B) unconstitutional would invite “bad” social policy consequences. Post, at 34. In fact, the dissent’s legal analysis only comes sandwiched between a lengthy paean to laws that impose severe punishments for gun crimes and a rogue’s gallery of offenses that may now be punished somewhat less severely. See post, at 1–2, 30–34. The dissent acknowledges that “the consequences cannot change our understanding of the law.” Post, at 34. But what’s the point of all this talk of “bad” consequences if not to suggest that judges should be tempted into reading the law to satisfy their policy goals?
I am not inclined to use this post to rail against results-oriented jurisprudence, in part because I think all jurisprudence is results-oriented in one sense or another. But with Gundy, Rehaif and Davis all so new and raw, and with surely lots of fall-out and follow-up to flow from these decisions, I could not resist a post spotlighting a little (Emerald City) legal realism. And with Haymond still in the works, perhaps even the Sixth Amendment Wizard will be revealed before too long.
P.S.: If anyone is eager to cast certain Justices as the Tin Man, Scarecrow and Cowardly Lion (or the Wicked Witch or Glinda or the Wizard or Auntie Em or even Toto), feel free to have at it in the comments.
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