Monthly Archives: December 2020

Maxwell Potluri, CLS ’22

For the second time in two years, the Supreme Court is the focus of public attention regarding a contentious confirmation hearing. In 2018, Justice Brett Kavanaugh’s confirmation highlighted the increasingly partisan battle over the nation’s highest court. Now, the Senate has confirmed Judge Amy Coney Barrett to the seat vacated by Justice Ruth Bader Ginsburg, which promises to tip control of the Court decisively in favor of its conservative wing. Judge Barrett’s nomination was particularly contentious because it came just before the 2020 Presidential Election. Her confirmation raises the question of how Democrats, should they win power, will attempt to deal with a more conservative Supreme Court.

Proposals for Supreme Court reform are not new — indeed, one of the more radical proposals is for Democrats to expand or “pack” the Court, something President Roosevelt attempted and failed to do in the 1930s. However, the Court’s size is not fixed: in the 1800s, its membership grew and shrank before reaching its current composition of nine justices.[1] Democratic president-elect Joe Biden has so far remained elusive on whether he would be willing to pack the Court. Despite calls from the progressive left, Biden has only gone so far as to propose a bipartisan commission of scholars to study possible judicial reform.[2] Liberal proponents of court expansion argue that Republicans are already effectively packing the courts, citing Senator McConnell’s tactics blocking President Obama’s nominations (including Judge Merrick Garland), and arguing that it would be “political suicide” for Democrats not to respond in turn.[3]

However, there are grave political implications inherent in any attempt to expand the Court. Roosevelt’s court-packing debacle, a response to the Court striking down New Deal legislation, was a political power play cloaked as an institutional reform.[4] Today, a court-packing scheme would be a similar move. It could come at the cost of increased partisanship and major political upheaval.[5] And while an expanded court might satisfy the immediate policy goals of liberals, the Court’s decisions on the most contentious issues would have less authority, and the consequences for the rule of law would be unpredictable.[6]

Legal scholars have suggested many Supreme Court reforms intended to address some of the perceived underlying issues with the Court.[7] One proposal is to replace life tenure with a system of staggered, non-renewable eighteen-year terms; arguably, this system could solve or mitigate three major problems: strategic retirements, incentives for presidents to appoint younger nominees, and the randomness of Supreme Court appointment distributions among presidents.[8] Whereas court-packing schemes inherently seek the advantage of one political party, proponents of the term limit system argue that it would be “party and ideology neutral” over time.[9] Such a change could reduce the political desires for court-packing, and would address the Court’s oft-criticized life tenure appointments.[10] However, term limits are certainly constitutionally suspect, as Article III makes no mention of them.[11] They also run contrary to the thought of at least some of the founders, who emphasized that the necessary constraint on the independent judiciary should be the requirement of “good behavior.”[12]

To implement such a reform would likely require a Constitutional amendment rather than a simple statute — a significant barrier to practical implementation.[13] An alternative, typically dismissed but worthy of consideration, is that the Court itself adopt a self-governing norm that justices retire after eighteen years of service, either through its own internal traditions or through the nomination procedure.

Since Supreme Court term limits may be unconstitutional if created by statute, and because the passage of a Constitutional amendment creating term limits is unlikely, perhaps the best chance at reforming the Court (without expanding its membership) is the development of such norms. If the only alternative begins to look like the effective subjugation of the Court to legislative and executive will via court-packing, the justices may choose instead to preserve their institution’s independence in an atmosphere of growing political polarization, scrutiny, and public pressure by creating an internal, self-governing norm for principled retirement. While it is true that this approach would likely have a major collective action problem initially, it could work. For instance, the Second Circuit has established a norm that all judges take senior status on the first day that they are eligible.[14] Congress could further encourage the development of this norm on the Supreme Court by enticing justices to retire at a certain time through the offer of more generous retirement benefits to the justices who desire once they have served eighteen years.[15]

Such a development of retirement norms may be impossible, however, for a Court and a country so accustomed to life tenure on the high court that the retirement of Justice David Souter “at the relatively youthful age of 69” came as a surprise.[16] For now, it remains to be seen whether Amy Coney Barrett’s confirmation will serve as a catalyst for a greater partisan fight over the Court’s future in the upcoming presidential term.

[1] See Kyle Sammin, It’s Definitely Time To Pack The Supreme Court, But For Entirely Practical Reasons, Federalist, (July 13, 2018), https://thefederalist.com/2018/07/13/definitely-time-pack-supreme-court-entirely-practical-reasons/.

[2] See Charlie Savage & Katie Glueck, Biden Punts on Expanding the Supreme Court, Calling for a Panel to Study Changes, N. Y. Times, (Oct. 22, 2020), https://www.nytimes.com/2020/10/22/us/politics/biden-supreme-court-packing.html.

[3] Michael Klarman, Why Democrats Should Pack the Supreme Court, Take Care, (Oct. 15, 2018), https://takecareblog.com/blog/why-democrats-should-pack-the-supreme-court.

[4] See Bob Bauer, Don’t Pack the Courts, Atlantic, (July 6, 2018), https://www.theatlantic.com/ideas/archive/2018/07/dont-pack-the-courts/564479/.

[5] See Ryan D. Doerfler & Samuel Moyn, Reform the Court, but Don’t Pack It, Atlantic, (Aug. 8, 2020), https://www.theatlantic.com/ideas/archive/2020/08/reform-the-court-but-dont-pack-it/614986/.

[6] See Bauer, supra note 4.

[7] See generally Roger C. Cramton & Paul D. Carrington, The Supreme Court Renewal Act: A Return to Basic Principles, in Reforming the Court: Term Limits for Supreme Court Justices 467 (Roger C. Cramton & Paul D. Carrington eds., 2006).

[8] See James E. DiTullio & John B. Schochet, Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms, 90 Va. L. Rev. 1093, 1096–97 (2004).

[9] Id. at 1144.

[10] See Gregg Easterbrook, The Case for Supreme Court Term Limits, 26 Intl. Soc’y Barristers Q. 373, 374 (1991) (arguing that the only comparable institution of power existing in America where individuals become “vested in the gray and unremovable” is the Catholic Church).

[11] See U.S. Const. art. III, § 1.

[12] The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[13] See Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L. J. 148, 173 (2019).

[14] See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J. L. & Pub. Pol’y 769, 874–75 (2006).

[15] See Kevin T. McGuire, Are the Justices Serving Too Long – An Assessment of Tenure on the U.S. Supreme Court, 89 Judicature 8, 15 (2005).

[16] Russell Berman, No Other Western Democracy Allows This, Atlantic, (Sept. 25, 2020), https://www.theatlantic.com/politics/archive/2020/09/supreme-court-retirement-age/616458/.

Gage Hodgen, CLS ’22

The opportunity for the criminally accused to contest his or her guilt is fundamental to the criminal justice system.  Despite the centrality of the constitutional right to a trial at which the government must prove criminal charges beyond a reasonable doubt, however, the federal Sentencing Guidelines effectively punish defendants who avail themselves of their right to trial and contest the factual elements of their guilt.[1]  This incentive to admit guilt in order to obtain a more lenient sentence may be troubling in the typical case for punishing defendants who do not submit meekly to government prosecution.  In the context of defendants who contest their guilt by asserting an entrapment defense, however, the concept of acceptance of responsibility itself is particularly elusive, as demonstrated by the Third Circuit’s recent opinion in United States v. Jackson, 2020 WL 5681690 (3rd Cir. Sept. 24, 2020), which raises serious questions about how courts should treat such a defense when determining moral culpability of the sort considered in the Sentencing Guidelines § 3E1.1(A).

The facts of Jackson, like the facts of many cases in which a defendant raises an entrapment defense,[2] do not inspire a great deal of sympathy for the accused.  Jackson was arrested for selling several ounces of methamphetamine to a confidential informant for the police in York County, Pennsylvania.[3]  The evidence showed that Jackson did not take a great deal of convincing to sell the drugs to the police informant,[4] which led the Third Circuit on review to conclude that Jackson had not satisfied his burden of showing that the government induced him to commit the crime.[5]

The more conceptually troubling aspect of Jackson is the Third Circuit’s conclusion that “[o]rdinarily a claim of entrapment seems to be the antithesis of the acceptance of responsibility”[6] and therefore that a defendant who raises an entrapment defense should be precluded from receiving a reduction of the offense level of his or her crime under § 3E1.1(A) of the Sentencing Guidelines even if he or she professes to accept responsibility for it.  The Third Circuit’s parsing of the entrapment defense as the defendant rejecting personal moral responsibility is in some tension with the nature of an entrapment defense and is not the only rational way to frame the defense.

As an affirmative defense, the entrapment defense requires that the defendant admit to committing the crime alleged (i.e., take responsibility for his or her actions) and plead a justification of sorts that the government wholly induced the otherwise law-abiding defendant to commit the crime.  A defendant could reasonably argue that the entrapment defense is at its core an admission by the defendant that the crime he or she committed was wrong coupled with a claim that the defendant committed the crime due to extraordinary pressure from the government and against his or her better judgment.  The Jackson Court’s conclusory treatment of the entrapment defense as necessarily a rejection of personal responsibility that precludes an offense level reduction under § 3E1.1(A) misses this key point; a court could just as reasonably understand the entrapment defense as the acceptance of responsibility for the crime joined with an appeal to compassion based on the extreme government temptation that induced the defendant to commit the crime.

Defendants already face an uphill battle when arguing entrapment. The vast majority of entrapment defenses fail either because of the high standard for what constitutes government inducement[7] or the low factual burden to justify a jury finding that a defendant was predisposed to commit the crime at issue.[8]  By stating that in most cases a defendant who even asserts an entrapment defense should receive a lengthier sentence under the Sentencing Guidelines because of a failure to accept moral responsibility, the Third Circuit in Jackson even further disincentivizes defendants from raising an entrapment defense and undercuts defendants’ ability to fully defend themselves without fear of retribution from the courts.

[1] U.S. Sent’g Guidelines Manual § 3E1.1(A) (U.S. Sent’g Comm’n 2018) provides that the offense level of a crime will be decreased by two “if the defendant clearly demonstrates acceptance of responsibility for his offense.”  The Guidelines explain that this adjustment is “not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.”  Id. at n.2.

[2] Even when entrapment defenses are successful, the facts of the defendants’ crimes are often off-putting because such defenses arise from police sting operations targeting drug crimes, terrorism, or sex crimes.  See, e.g., Jacobson v. United States, 503 U.S. 540 (1992) (finding entrapment of a defendant who ordered child pornography because of a police sting operation).

[3] United States v. Jackson, 2018 WL 4469694, at *1–3 (M.D. Penn. Sept. 18, 2018), aff’d, 2020 WL 5681690 (3rd Cir. Sept. 24, 2020).

[4] Id.

[5] Jackson, 2020 WL 5681690 at *2.  A successful entrapment defense requires that a defendant prove two elements:  government inducement of the crime and lack of predisposition on the part of the defendant to engage in the criminal conduct.  Id.

[6] Id.

[7] See, e.g., United States v. Dennis, 826 F.3d 683, 690 (3rd Cir. 2016) (“A mere solicitation or request by the government to participate in a criminal activity, without more, is not inducement.  Likewise, merely opening an opportunity for a crime is insufficient. Rather, the defendant must show that law enforcement engaged in conduct that takes the form of persuasion, fraudulent representation, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy or friendship.”) (internal quotations marks and citations omitted).

[8] See, e.g., United States v. Bolatete, 2020 WL 5784153, at *10–11 (11th Cir. Sept. 29, 2020) (finding that a jury’s finding of predisposition to buying an unregistered silencer was reasonably supported by the evidence despite the defendant’s expressed disinterest in purchasing such a silencer and the police officer’s conclusion that the defendant had “no desire to own a silencer.”)