Hello Gavelians! Yep, I'm calling anyone that reads this column that from now on because ... umm ... well just because. Yesterday, the Supreme Court opened up its October Term 2021 with two oral arguments, and while they were hardly barn-burners I wanted to provide some information on them because I frankly like this stuff and figure someone else might find some minor interest in some of it too. I'm not going to give big long summaries of the cases here - I'll save that for decision analyses assuming I get a chance to write them later. Instead, this is more of a News & Notes style column discussing some interesting things from the arguments.
(1) The first case heard this term was an original jurisdiction case in a long-running battle between Mississippi and Tennessee over water rights. Mississippi is alleging that Tennessee is drilling wells close enough to the Mississippi border that water is being unnaturally pulled into the "cone of depression" created by the well and so flowing over to Tennessee at a pace faster than it otherwise would. Hydrologically this is a good argument - it's absolutely true that drilling causes water to move in ways it otherwise wouldn't. Mississippi is alleging over $600 million in damages and wants to be compensated for it, but there's a problem ... water issues between states are generally resolved through the Equitable Apportionment Doctrine, but that doesn't actually apply here because Tennessee isn't misusing water that would otherwise flow down to Mississippi - the usual pattern. Instead, Mississippi is basically alleging a form of nuisance or trespass, saying that Tennessee is interfering with Mississippi's sovereign control of the water in its territory.
(2) Tennessee and the United States both are pretty dismissive of Mississippi's claim, and for pretty good reason. No one has ever really made the type of claim that Mississippi is making, and Tennessee has fired back that Mississippi hasn't even suffered any injury - there is sufficient water in the area that the aquifer Tennessee is drilling from is still fully saturated, meaning Mississippi has been able to use its own drilling to get all the water it needs. No pollution has been introduced into the water. No subsidence has occurred as a result of the movement of the water. In other words, Mississippi seems to be arguing that it has some sort of ethereal "loss of sovereignty" injury. Oddly, Mississippi hinted at increased drilling costs due to Tennessee's drilling, and possibly increased need for filtering due to higher sedimentation in the water recovered - both of which would seem to be solid grounds for establishing injury - but nonetheless are standing firm on the soverignty and control argument as the basis of their claim. I'm not sure why they chose that approach, as it seems like a losing argument.
(3) The second argument of the day was in Wooden v. United States and involved a provision of the Armed Career Criminal Act. Under that Act, a person guilty of committing felonies with firearms on three occassions is subject to a mandatory minimum of 15 years. The problem is that no one is quite sure what "occasions" means, because Congress wasn't clear. The Petitioner/Defendant is arguing that separate "occasions" require some sort of discrete separation in time or clear separation of the criminal events occurring - so, breaking into ten storage units within a storage facility would constitute one "occasion." The United States, on the other hand, is pushing a sort of "elements" test that if applied stringently would mean that each of the ten unit breakins within the storage facility would count as separate "occasions." Obviously this has dramatic differences in result - under the Defendant's proposed reading, this would be one occasion only under the ACCA, and the mandatory minimum would not apply to the defendant unless they had two other firearm related felonies already on their record. Under the government's preferred reading, this one "event" could have led to ten separate "occasions" and so the mandatory minimums would immediately apply. Incidentally, everyone was confused throughout this argument about what separate occasions are and how to judge them. The tests are all amorphous and hard to apply ... that's why SCOTUS gets the big bucks.
(3a ... whoops) Last year, due to COVID, the Supreme Court heard oral arguments over the phone. While everyone was back in person this year (except for Justice Kavanaugh, who had a positive test late last week and participated over the phone yesterday), arguments had a bit of a different tone. For one thing, after years of silence Justice Thomas spoke up regularly in the conference call format last year. Indications after one day this year suggest his increased participation is here to stay, as he asked the first question of all four of the main lawyers in the two cases argued before the Court, and also asked some follow ups. Also new - Justice Roberts doing a sort of roll call at the end of each lawyers argument session seeing if anyone had further questions. Not being in the court room, I couldn't tell how much time was left to the lawyers when this happened, and it is possible he was doing this just because more time was available for the argument - still, I can't ever recall him having done it before.
(4) For smart people, the Justices did not seem well versed on hydrological principles during the Mississippi argument. At one point, Chief Justice Roberts even asked if the relevant question was the movement of water in this case, thinking maybe it was the movement of silt or something that was relevant. This vastly overcomplicates the question the Court has in front of it - the water is moving *through* sand/silt, but because no subsidence or pollution is occurring and this is a natural aquifer, the only relevant question is what the water is doing. Roberts was overthinking this one and probably shouldn't go into the hydrological sciences anytime soon.
(5) Justice Gorsuch had some interesting exchanges in both arguments on Monday. In the Mississippi case, more than the other Justices he seemed concerned about the ultimate disposition of the case, asking some questions about what kind of order the Court should issue if Mississippi lost and whether the state should have leave to amend its complaint if the Court said that their preferred approach was wrong. Tennessee wants the case dismissed with prejudice, arguing that Mississippi has had plenty of time to shape its argument toward existing approaches for handling water law but has chosen not to - why give them further leave to amend? Of course, it was pointed out in the argument that not giving Mississippi leave to amend might just encourage a brand new suit, with a new set of arguments, a new special master, another five years of the Court's time. I expect Mississippi to lose, but to be given one last opportunity to find a way to frame their argument in the context of Equitable Apportionment - which probably isn't possible.
(6) If you got the impression that the ACCA question is a complex one that doesn't have an easy answer, you're right. No one really seems clear on what is one occasion and what are separate occasions. This led Justice Gorsuch to ask about the Rule of Lenity, which says courts should essentially give the benefit of the doubt to defendants when there are ambiguous statutes. He also asked if the statute isn't simply too vague to apply appropriately. He seems to certainly be flirting with the idea of handing the win to the Defendant here, and perhaps articulating a clearer rule going forward. Ultimately, Congress may need to determine if the result SCOTUS goes with reflects Congressional intent once an opinion is issued, because since this is a statutory and not a constitutional issue (for the most part), Congress will be able to amend the statute if SCOTUS makes a mess of it.
(7) Justice Alito must not like water. He didn't ask any questions in the Mississippi v. Tennessee case.
(1) The first case heard this term was an original jurisdiction case in a long-running battle between Mississippi and Tennessee over water rights. Mississippi is alleging that Tennessee is drilling wells close enough to the Mississippi border that water is being unnaturally pulled into the "cone of depression" created by the well and so flowing over to Tennessee at a pace faster than it otherwise would. Hydrologically this is a good argument - it's absolutely true that drilling causes water to move in ways it otherwise wouldn't. Mississippi is alleging over $600 million in damages and wants to be compensated for it, but there's a problem ... water issues between states are generally resolved through the Equitable Apportionment Doctrine, but that doesn't actually apply here because Tennessee isn't misusing water that would otherwise flow down to Mississippi - the usual pattern. Instead, Mississippi is basically alleging a form of nuisance or trespass, saying that Tennessee is interfering with Mississippi's sovereign control of the water in its territory.
(2) Tennessee and the United States both are pretty dismissive of Mississippi's claim, and for pretty good reason. No one has ever really made the type of claim that Mississippi is making, and Tennessee has fired back that Mississippi hasn't even suffered any injury - there is sufficient water in the area that the aquifer Tennessee is drilling from is still fully saturated, meaning Mississippi has been able to use its own drilling to get all the water it needs. No pollution has been introduced into the water. No subsidence has occurred as a result of the movement of the water. In other words, Mississippi seems to be arguing that it has some sort of ethereal "loss of sovereignty" injury. Oddly, Mississippi hinted at increased drilling costs due to Tennessee's drilling, and possibly increased need for filtering due to higher sedimentation in the water recovered - both of which would seem to be solid grounds for establishing injury - but nonetheless are standing firm on the soverignty and control argument as the basis of their claim. I'm not sure why they chose that approach, as it seems like a losing argument.
(3) The second argument of the day was in Wooden v. United States and involved a provision of the Armed Career Criminal Act. Under that Act, a person guilty of committing felonies with firearms on three occassions is subject to a mandatory minimum of 15 years. The problem is that no one is quite sure what "occasions" means, because Congress wasn't clear. The Petitioner/Defendant is arguing that separate "occasions" require some sort of discrete separation in time or clear separation of the criminal events occurring - so, breaking into ten storage units within a storage facility would constitute one "occasion." The United States, on the other hand, is pushing a sort of "elements" test that if applied stringently would mean that each of the ten unit breakins within the storage facility would count as separate "occasions." Obviously this has dramatic differences in result - under the Defendant's proposed reading, this would be one occasion only under the ACCA, and the mandatory minimum would not apply to the defendant unless they had two other firearm related felonies already on their record. Under the government's preferred reading, this one "event" could have led to ten separate "occasions" and so the mandatory minimums would immediately apply. Incidentally, everyone was confused throughout this argument about what separate occasions are and how to judge them. The tests are all amorphous and hard to apply ... that's why SCOTUS gets the big bucks.
(3a ... whoops) Last year, due to COVID, the Supreme Court heard oral arguments over the phone. While everyone was back in person this year (except for Justice Kavanaugh, who had a positive test late last week and participated over the phone yesterday), arguments had a bit of a different tone. For one thing, after years of silence Justice Thomas spoke up regularly in the conference call format last year. Indications after one day this year suggest his increased participation is here to stay, as he asked the first question of all four of the main lawyers in the two cases argued before the Court, and also asked some follow ups. Also new - Justice Roberts doing a sort of roll call at the end of each lawyers argument session seeing if anyone had further questions. Not being in the court room, I couldn't tell how much time was left to the lawyers when this happened, and it is possible he was doing this just because more time was available for the argument - still, I can't ever recall him having done it before.
(4) For smart people, the Justices did not seem well versed on hydrological principles during the Mississippi argument. At one point, Chief Justice Roberts even asked if the relevant question was the movement of water in this case, thinking maybe it was the movement of silt or something that was relevant. This vastly overcomplicates the question the Court has in front of it - the water is moving *through* sand/silt, but because no subsidence or pollution is occurring and this is a natural aquifer, the only relevant question is what the water is doing. Roberts was overthinking this one and probably shouldn't go into the hydrological sciences anytime soon.
(5) Justice Gorsuch had some interesting exchanges in both arguments on Monday. In the Mississippi case, more than the other Justices he seemed concerned about the ultimate disposition of the case, asking some questions about what kind of order the Court should issue if Mississippi lost and whether the state should have leave to amend its complaint if the Court said that their preferred approach was wrong. Tennessee wants the case dismissed with prejudice, arguing that Mississippi has had plenty of time to shape its argument toward existing approaches for handling water law but has chosen not to - why give them further leave to amend? Of course, it was pointed out in the argument that not giving Mississippi leave to amend might just encourage a brand new suit, with a new set of arguments, a new special master, another five years of the Court's time. I expect Mississippi to lose, but to be given one last opportunity to find a way to frame their argument in the context of Equitable Apportionment - which probably isn't possible.
(6) If you got the impression that the ACCA question is a complex one that doesn't have an easy answer, you're right. No one really seems clear on what is one occasion and what are separate occasions. This led Justice Gorsuch to ask about the Rule of Lenity, which says courts should essentially give the benefit of the doubt to defendants when there are ambiguous statutes. He also asked if the statute isn't simply too vague to apply appropriately. He seems to certainly be flirting with the idea of handing the win to the Defendant here, and perhaps articulating a clearer rule going forward. Ultimately, Congress may need to determine if the result SCOTUS goes with reflects Congressional intent once an opinion is issued, because since this is a statutory and not a constitutional issue (for the most part), Congress will be able to amend the statute if SCOTUS makes a mess of it.
(7) Justice Alito must not like water. He didn't ask any questions in the Mississippi v. Tennessee case.
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