Muted Arguments at Supreme Court for Kavanaugh’s First Day

WASHINGTON (CN) – Asking just five questions during his first day at the Supreme Court, Justice Brett Kavanaugh focused on precedent Tuesday in oral argument for a criminal case about the classification of violent felonies.

A police officer guards the front steps of the Supreme Court in Washington as activists protest on Oct. 9, 2018. A Supreme Court with a new conservative majority took the bench this morning after a bitter Senate confirmation battle for newly elevated Justice Brett Kavanaugh. (AP Photo/Pablo Martinez Monsivais)

The hearing this morning went off without interruption and with only minimal protests outside of the court. A far cry from the throngs who took to the court and Senate office buildings to protest Kavanaugh’s confirmation in recent days, between 20 and 30 protesters gathered in front of the building to chant their disapproval an hour before arguments. Most if not all of the protesters appeared to have disbursed by the time arguments ended.

Retired Justice Anthony Kennedy, whose seat Kavanaugh took on the court, was in attendance to see his former law clerk’s first arguments, as were Kavanaugh’s wife and two daughters.

Chief Justice John Roberts began the hearing by acknowledging Kennedy’s retirement and by wishing Kavanaugh a long career “in our common calling.”

Arguments began then for a case concerning the Armed Career Criminal Act, which imposes harsher sentences on people convicted of a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

The latest in a long string of challenges to the law, this case centers on Denard Stokeling, who faced the ACCA’s sentencing enhancement on a burglary charge because of a 1997 Florida conviction for unarmed robbery. After losing an appeal in the 11th Circuit, Stokeling asked the Supreme Court to find Florida’s definition of robbery does not require enough physical force to trigger the ACCA enhancement.

Key to the case is the court’s holding in Curtis Johnson v. United States, in which the court found Florida’s battery statute did not require enough force to qualify as a violent felony.

Kavanaugh remained silent early on, but interjected toward the end of the argument by an attorney Stokeling to focus on the 2010 precedent.

“But, counsel,” Kavanaugh asked attorney Brenda Bryn, “in Curtis Johnson, you rely heavily on the general statements of the court, but the application of those general statements was to something very specific: battery and a mere tap on the shoulder. And all Curtis Johnson seemed to hold was that that was excluded. So why don’t we follow what Curtis Johnson seemed to do in applying those general statements to the specific statute at issue here? And why wouldn’t that encompass the Florida statute, which requires more than, say, a tap on the shoulder?”

Kavanaugh pitched a similar question to Assistant to the Solicitor General Frederick Liu as Liu argued the government’s case that the conduct swept up in the Florida robbery law is exactly what Congress intended to more harshly punish when it passed the ACCA.

He also pressed Liu on how many state robbery laws would still qualify for enhanced sentencing if the court accepted Stokeling’s reading of the ACCA. Liu said it would be hard to give an exact number, but estimated roughly two dozen would still qualify. Bryn said earlier in the argument that only four state robbery laws would no longer trigger enhanced sentences.

The other justices spent much of the argument debating how much force a criminal must exert on a victim in order to bring the ACCA enhancement into the picture.

In briefs to the court, Stokeling said an act as simple as ripping a dollar bill from a person’s hands would subject a person to a longer sentence under Florida law. Roberts told Bryn during arguments that he and his law clerks tested out this hypothetical and came away surprised at the result.

“I mean, people think, oh, it tears easily,” Roberts said. “Well, it tears easily if you go like this, but if you’re really tugging on it – I mean, it’s – I’m not saying nobody could do it, but it requires a lot of force, more than you might think.”

The justices also wondered whether pinching someone or snatching a purse off a woman’s shoulder would meet the government’s definition of required force and whether it would matter if the victim bruised easily or was particularly strong.

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