Last year, the Supreme Court heard oral argument in Dimaya v. Lynch, which we covered in a previous blog post.  To recap, Dimaya asked whether one part of the statutory definition of a “crime of violence” under 18 U.S.C. § 16(b) was unconstitutionally vague, in light of the Supreme Court’s earlier Johnson decision striking down a similar definition for “violent felony” in the Armed Career Criminal Act.  Although the Dimaya case arose in the immigration context, its outcome has important practical implications for criminal defense practitioners because many federal statutes and rules either directly incorporate § 16(b)’s definition of a crime of violence, or use very similar language to define terms like “crime of violence.”

The Supreme Court first heard oral argument in Dimaya last year.  However, it was unable to reach a decision in time (perhaps because the Court had only 8 members), and thus calendared the case for re-argument.  During the interim, Justice Gorsusch joined the Court, and with a new Attorney General in office, the Dimaya case was restyled to Sessions v. Dimaya.  This past Monday, a 9-member court (including the newly appointed Justice Gorsuch) heard re-argument in Sessions v. Dimaya.

The arguments advanced by the parties on argument have not changed substantially from the previous round.  The government maintained that the Ninth Circuit’s decision holding that §16(b) is unconstitutionally vague must be reversed because: (1) the case arises in the immigration context, which entails a different vagueness standard, and (2) there are some textual differences between § 16(b) and the ACCA provision that was struck down that arguably makes § 16(b) more precise.  The defense, meanwhile, argued that: (1) the same vagueness standard applies in Dimaya because deportation is a severe loss of liberty on par with serious criminal penalties, and (2) the textual differences in the two provisions do not resolve the fundamental vagueness problem caused by their common reliance on the “ordinary case” standard.

Deputy Solicitor General Edwin Kneedler argued the case first on behalf the United States.  His argument was immediately greeted by a barrage of difficult questions from Justice Sotomayor, who at the last oral argument clearly demonstrated an inclination to affirm the Ninth Circuit.  The Justice asked the Deputy, for example, whether “immigration officials [can] walk down the street and say I just don’t like the way you look; out?”  Justice Kagan, who we suspect will also vote in favor of affirmance, rhetorically asked the government several times whether the “ordinary case” standard was central to the vagueness problem. Rounding out the trio of Justices most likely to vote in favor of affirmance, Justice Ginsburg asked the government whether it could have deported Dimaya under a different provision that defined “crime of moral turpitude.”  Although she did not signal her views as clearly as Justices Sotomayor or Kagan, Justice Ginsburg seems to be pointing out that a ruling striking down § 16(b) would not prevent the government from effectively carrying out its immigration policies in practice.

Justice Gorsuch, the newest member of the Court, was highly active during oral argument.  His questions also indicated a disposition to affirm the Ninth Circuit and invalidate § 16(b). He was especially unpersuaded by the government’s attempts to apply a more lenient vagueness standard.  For example, he pointed out that the void for vagueness doctrine arises under the Due Process Clause, which does not speak of a distinction between civil and criminal cases, even though other provisions in the Constitution (such as the Fifth Amendment) do explicitly mention criminal cases.  Moreover, when the government asserted that it is impossible to expect Congress to be more precise in defining a “crime of violence,” Justice Gorsuch sharply responded by saying: “Really? even when it’s going to put people in prison and deprive them of liberty and result in deportation, we shouldn’t expect Congress to be able to specify who are captured by its laws?”

Once the Deputy Solicitor General left the podium, Joshua Rosenkranz got up and argued the case for the respondent.  Justice Kennedy was the first to interrupt the respondent’s argument with a question, noting that § 16(b) uses the language: “during the course of committing the offense,” whereas ACCA’s residual clause used the phrase: “otherwise involves conduct.” Justice Breyer seemed to share a similar view as Justice Kennedy, noting that the “course of committing the offense” language suggested a temporal limitation that was not present in ACCA’s residual clause.  Rosenkranz’s response to both Justices, was, in essence, that the government has repeatedly taken positions regarding § 16(b)’s application to certain crimes—such as conspiracy or attempt—that renders this distinction meaningless.

Justice Alito, who at the last oral argument appeared more sympathetic to the government’s position, focused primarily on the line between civil and criminal cases, and seemed to believe that there would be difficult line drawing problems if criminal vagueness standards can be applied to the immigration context.  He asked, for example, whether it would be appropriate for State licensing statutes to use similar language, making licenses unavailable to anyone with a conviction for a “crime of violence.” Mr. Rosenkranz deftly handled this question by drawing on a question from Justice Gorsuch earlier, and responded that the line drawn should be based on when the consequences of the statute deprives one of “life, liberty, or property.”

Neither Chief Justice Roberts nor Justice Thomas asked any questions during oral argument.

In sum, Justices Sotomayor, Ginsburg, Kagan, and Gorsuch all appear likely to vote in favor of invalidating § 16(b) based on the oral argument on Monday.  Meanwhile, Justices Alito, Kennedy, and Breyer may vote to reverse the Ninth Circuit, although they may rely on different rationales to reach that result—with Justice Alito being the only person who the Court who appears to be persuaded by the government’s civil/criminal distinction, while Justices Kennedy and Breyer may be persuaded by the textual differences between § 16(b) and ACCA’s residual clause.  Thus, the outcome of the case will ultimately depend on how the Chief Justice and Justice Thomas votes in this case, and the oral argument on Monday did not signify a clear victory for either side.