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Activists by Invitation—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on June 15, 2011.

Activists by Invitation
By Linda Greenhouse ’78 MSL

No one loves an activist judge. We know this because members of the Senate Judiciary Committee are forever denouncing “judicial activism” and warning of its hidden dangers. Last summer, when Sen. Orrin Hatch, Republican of Utah, became the first member of the committee to oppose Elena Kagan’s Supreme Court nomination, he explained that the nominee had “endorsed, and praised those who endorse, an activist judicial philosophy.”

(Guilt by association, but let it go. Senator Hatch did not accuse the nominee of actually possessing an activist judicial philosophy herself — not surprisingly, because by the end of her confirmation hearing, it was not clear that the Harvard Law School dean had a judicial philosophy of any kind. Evidently, judicial activism’s emanations are so powerful as to infect those who keep company with judicial activists.)

Senator Hatch is hardly alone. The ubiquitous anti-activist mantra requires nominees to describe themselves as so passive that I, for one, am left to wonder how they have the energy to get out of bed in the morning, let alone face the United States Senate.

So it’s rather startling to consider exactly what Congress — in its legislating rather than its nominee-vetting capacity — actually expects federal judges to do.

The existence of broadly or sloppily written statutes that require courts to fill in the blanks or resolve internal contradictions is hardly news. Indeed, it’s the ordinary business of statutory interpretation. But a Supreme Court decision last week — more precisely, a dissenting opinion by Justice Antonin Scalia — shone a spotlight on a more troubling subset of the problem: criminal laws that leave it up to judges to define the crime. It’s hard to imagine a more activist judicial endeavor, but it’s one with which Congress seems surprisingly comfortable.

As with three other recent Supreme Court cases, this one required the justices to interpret a provision of the federal Armed Career Criminal Act. This 1984 law imposes a 15-year minimum prison sentence (maximum of life) for possession of a gun by a person previously convicted of three serious drug offenses or violent felonies.

Clear enough, but what is a violent felony? The statute provides a list: use of physical force against another person, burglary, arson, and so on. And then there is a catch-all phrase: “. . . or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Congress might have added, “such as fleeing in a speeding car from a police officer who has ordered him to stop.” Might have, but did not: that was the situation that the case, Sykes v. United States, presented. Marcus Sykes, with two robberies on his record, had earlier been convicted in Indiana of the felony of “resisting law enforcement” by “vehicle flight” from an officer who had ordered him to pull over for driving without headlights. The flight was concededly a third felony for Mr. Sykes, but was it a third violent felony, sufficient to turn him into an “armed career criminal”? Under Indiana law, Mr. Sykes’s particular manner of flight, without a drawn weapon and without resulting injury, carried a penalty of six months to three years, a rather far cry from a potential of life in prison under the federal law’s stiff sentences. It was violent only if “violent” is a legal term of art, not a description of what actually occurred.

But what actually occurred didn’t matter, according to Justice Anthony M. Kennedy’s opinion for the 6-to-3 majority. Justice Kennedy explained that the court decides such a question “categorically,” without reference to the facts of the particular case. Does flight in a vehicle from a police officer — abstract flight, not Mr. Sykes’s particular flight — inherently present “a serious potential risk of physical injury to another”? Yes, was the majority’s answer. “The attempt to elude capture is a direct challenge to an officer’s authority,” Justice Kennedy said. “It is a provocative and dangerous act” that “places property and persons at serious risk of injury.”

And by inviting, even demanding, pursuit, flight poses an actual danger and not just a potential one, Justice Kennedy added. Citing statistics on police chases compiled by the International Association of Chiefs of Police, he said that the rate of injury from vehicle pursuits was 20 percent higher than from burglary or arson, two of the offenses the Armed Career Criminal statute explicitly names as violent felonies.

In his dissenting opinion, Justice Scalia objected vigorously to the use of these statistics, which he called “untested judicial fact-finding masquerading as statutory interpretation.” But that was not his main objection. Congress had written a statute so vague, he said, that it “permits, indeed invites, arbitrary enforcement,” so vague, in fact, as to be unconstitutional. It was not the courts’ job to supply precision that Congress had not seen fit to provide, Justice Scalia concluded: “Fuzzy, leave-the-details-to-be-sorted-out-by-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt.”

(The other two dissenters, Justices Kagan and Ruth Bader Ginsburg, said that because flight from law enforcement was not inherently violent, and because Indiana had convicted Mr. Sykes “only of simple vehicular flight, and not of any flight offense involving aggressive or dangerous activity,” his conviction was not sufficient to make him a violent felon. Justice Kagan — she of the activist affinities — wrote this opinion, her first in a criminal case, and Justice Ginsburg signed it.)

The Sykes case is over, but the Supreme Court’s legislative duties are not. Looking ahead to its next term, the court has already agreed to answer this question: whether filing a false corporate tax return fits the definition of “aggravated felony,” which subjects a non-citizen to deportation. Here, the court is not undertaking to define a crime, but rather to determine whether commission of a particular crime will have the drastic and life-altering consequence of deportation.

This new case, Kawashima v. Holder, was brought to the court by a Japanese husband and wife, Akio and Fusako Kawashima, lawful permanent residents of the United States since 1984. Part owners of a Japanese restaurant in California, they pleaded guilty to underreporting their business income and have been fighting a deportation order for the past decade in a convoluted legal journey that has involved four trips to the United States Court of Appeals for the Ninth Circuit. Most recently, the Ninth Circuit ruled against them, finding that their tax offense met the “aggravated felony” definition.

The Ninth Circuit held, and some other courts agree, that a tax offense is an aggravated felony within the meaning of the Immigration and Nationality Act as long as the loss to the government is more than $10,000 (in the Kawashimas’ case, it was $245,126.) Other courts maintain that simply filing a false statement — the crime to which the couple pleaded guilty — does not qualify in the absence of a further finding of “fraud and deceit” amounting to the separate crime of tax evasion.

Congress could easily make the simple filing of a false tax return a deportable offense. But if that’s what it did, it certainly didn’t say so with any clarity. The statute’s definitions of aggravated felonies take up more than three pages, including specific crimes of violence, prostitution, national security-related crimes, obstruction of justice, and the like. Section “M,” the portion relevant to this case, reads as follows:

“An offense that:

(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or

(ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.”

Is that clear? Not to me, and I’ve read it at least 20 times. Do both clauses apply to tax crimes, or does only the second, which would suggest that the only deportable tax crime is evasion. The only message I can derive from this confusing case is that any non-citizen eligible for U.S. citizenship should run, not walk, to the nearest immigration office for the only sure way to avoid stumbling into a deportable offense. Maybe the court will manage to make some sense of it all when it decides the case next year, or maybe, like Justice Scalia last week, the justices will throw up their hands. Congress may not like judicial activists, but it wouldn’t know what to do without them.