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28 ■ JUNE 14, 2021 NEWS

Kagan Tells Kavanaugh: Nothing ‘Unfair’ in

Justices’ Lineup in Criminal Case

By Marcia Coyle

n a lengthy and dense U.S. Supreme Court deci-
sion Thursday, Justices Elena Kagan and Brett
IKavanaugh engaged in a rare wrangle in footnotes
over how their colleagues aligned in the criminal
case.
Kagan wrote a plurality opinion that was joined
by her liberal colleagues Justices Stephen Breyer and
Sonia Sotomayor and her colleague on the right,
Justice Neil Gorsuch. Justice Clarence Thomas con-
curred in the judgment. The final vote: 5-4.
Legal academics ponder alignments of justices for
any insight into behind-the-scenes deliberations.
News reporters often spotlight how the justices
align. But it’s uncommon to see justices themselves
referring to the alignments.
The case, Borden v. United States, asked the jus-
tices to decide whether a criminal offense can count
as a “violent felony” if it requires prosecutors to
show recklessness, a lesser mental state than knowl- Justice Brett Kavanaugh, U.S. Supreme Court. (Photo:
edge or purpose. The Armed Career Criminal Act Diego M. Radzinschi/ALM)
mandates a 15-year minimum sentence for someone of physical force’ in a similarly worded statute cov-
found guilty of illegally possessing a gun who has ers reckless offenses. And eight Justices today accept
three or more “violent felony” convictions. Charles that the phrase “use of physical force” covers reck-
Borden Jr. claimed one of his three convictions did less offenses. Moreover, five Justices today agree
not qualify as a violent felony. that ACCA’s text, properly interpreted, would cover
Kagan ruled that a reckless offense does not reckless offenses. And only four Justices conclude
qualify as a violent felony. Thomas agreed with the that the phrase ‘against the person of another’ ad-
judgment, reaching the same result but on different dresses mens rea and excludes reckless offenses. Yet
grounds. He also wrote that the result was consistent despite all of that, Borden prevails, and reckless of-
with a prior decision that he believed was erroneous. fenses are now excluded from ACCA’s scope. That
Kavanaugh wrote a dissent that was joined by Chief outcome is anomalous.”
Justice John Roberts Jr. and Justices Samuel Alito Jr. Kagan, making her own computations, replied:
and Amy Coney Barrett. “The dissent also goes through a complicated count-
Kavanaugh singled out what he claimed was the ing exercise about how different Justices have divided
“anomalous outcome” in the case because of the jus- in this and two other cases, apparently to show how
tices’ votes in prior related cases, Voisine v. United unfair it is that the dissent’s view has not prevailed
States and johnson v. United States. He wrote: here. But there is nothing particularly unusual about
“So we find ourselves in an unusual situation. In today’s line-up. Four Justices think that the ‘use’
Voisine, seven Justices agreed that the phrase ‘use phrase, as modified by the ‘against’ phrase, in ACCA’s

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