In a newly resolved — for now — U.S. Supreme Court case, liberal Justice Elena Kagan adeptly dismantled shoddy arguments from conservative Justice Brett Kavanaugh, who was appointed by Donald Trump. Although the court currently has a conservative lean thanks to the presence of five justices nominated by Republican presidents on the nine-member bench, in this case, Kagan was actually in the majority, while Kavanaugh was not. At issue was whether a past felony conviction involving so-called reckless conduct could lead to a required 15-year minimum sentence in the event that a convicted felon was caught unlawfully possessing a firearm.
Kagan — and the justices who agreed with her — concluded that reckless conduct could not be used to establish the mandatory minimum sentence for firearm possession. Ordinarily, legislation called the Armed Career Criminal Act requires a minimum prison sentence of 15 years if a felon with three past convictions for “violent felonies” is found in unlawful possession of a firearm. Kagan argued that, since the original legislation defines a violent felony as an instance in which physical force is used “against the person of another,” so-called reckless conduct does not count because of the implied level of intentionality. Kavanaugh argued the opposite, claiming that “reckless” conduct counts as a violent felony under the law.
Although conservatives often stick up for gun possession, another conservative priority — strict criminal justice measures — apparently won out in this instance for Kavanaugh. In the majority opinion that Kagan wrote in the case, she derisively observed that Kavanaugh had gone “through a complicated counting exercise about how different Justices have divided in this and two other cases, apparently to show how unfair it is that the dissent’s view has not prevailed here.” Whether or not Brett Kavanaugh thinks a conclusion is fair obviously has no meaningful bearing on whether that finding is appropriate. Kagan also observed in reference to the original legislation that the court “must construe the elements clause as it is — without first inserting the word that will (presto!) produce the dissent’s reading.”
Check out Kagan’s remarks below:
Kagan: Kavanaugh merely reprises the government's "flawed argument," "if at a higher volume," "putting the rabbit in the hat" by "inserting the word that will (presto!) produce [his] reading."https://t.co/N6UnwvQJtD pic.twitter.com/WMCMVv3LKb
— Mark Joseph Stern (@mjs_DC) June 10, 2021