A Republic, If You Can Keep It

by Neil Gorsuch

  Few statutes have proven as enigmatic as 18 U.S.C. §924(c). Everyone knows that, generally speaking, the statute imposes heightened penalties on those who use guns to commit violent crimes or drug offenses. But the details are full of devils. Originally passed in 1968, today the statute says that “any person who, during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime…be sentenced to a term of imprisonment of not less than 5 years.” That bramble of prepositional phrases may excite the grammar teacher but it’s certainly kept the federal courts busy. What does it mean to “use” a gun “during and in relation to” a drug trafficking offense? What does and doesn’t qualify as a “crime of violence”? And then there’s the question posed by this case: What is the statute’s proper unit of prosecution? The parties before us agree that Philbert Rentz “used” a gun only once but did so “during and in relation to” two separate “crimes of violence”—by firing a single shot that hit and injured one victim but then managed to strike and kill another. In circumstances like these, does the statute permit the government to charge one violation or two?

  This circuit and virtually every other has held that for each separate charge it pursues under the statute the government must prove a separate crime of violence or drug trafficking crime. The government admits this burden and no one asks us to revisit it. But what about the statute’s discussion of uses, carries, and possessions? Must the government also prove a separate one of those for each separate charge it brings?

  Cases like Mr. Rentz’s are hardly unusual. In an age when the manifest of federal criminal offenses stretches ever longer, a parsimonious pleader can easily describe a defendant’s single use of a firearm as happening “during and in relation to” multiple qualifying crimes. Like when a defendant shoots a potential witness against him—committing at once the separate crimes of murder and the killing of a witness. Or when a defendant brandishes a weapon to induce his victim to surrender a car and come with him—committing in the process the crimes of car-jacking and kidnapping. Or when a defendant points a gun at his victim and demands that she call relatives for cash—giving rise to both an unlawful ransom demand and attempted extortion. In all these circumstances and many more besides, deciding what is required to prove each charge matters greatly, determining whether the defendant will face five or ten years in prison or more like thirty years to life.

  When seeking a statute’s unit of prosecution—when asking what the minimum amount of activity a defendant must undertake, what he must do, to commit each new and independent violation of a criminal statute—the feature that naturally draws our immediate attention is the statute’s verb. This comes as no surprise, of course, as the verb supplies the action or doing part of most any sentence, statutory or otherwise. True, in the business of statutory interpretation we do not always bow to linguistic rules. A court’s job, after all, is to discern the statute’s meaning not grade its grammar, and sometimes a law’s meaning can be clear even when the grammar’s downright awful. But until a clue emerges suggesting otherwise, it’s not unreasonable to think that Congress used the English language according to its conventions. And in the statute’s language we find three relevant verbs: uses, carries, and possesses. This alone supplies some evidence that each charge must involve an independent act of using, carrying, or possessing. After all, if a law’s verb says it’s a crime to kill someone, we usually think a defendant must kill more than one person to be found guilty of more than one offense. That’s the action necessary to support each and every unit of prosecution. The statute’s verbs make it a crime to use, carry, or possess a firearm in certain circumstances. So reading it like our homicide statute and in accord with the normal rules of statutory (and sentence) construction goes some way to suggest that every new conviction requires a new act falling into one of those three categories.

  Another linguistic clue points in the same direction. The statute doesn’t prohibit using or carrying or possessing a gun in isolation. Nor could it, for guns often may be lawfully used, carried, or possessed: the Constitution guarantees as much. Instead, the statute prohibits using or carrying a gun during and in relation to any crime of violence or drug trafficking crime, or possessing a gun in furtherance of any such crime. These adverbial prepositional phrases modify the verbs uses, carries, and possesses. They tell us which acts of using, carrying, or possessing Congress sought to punish—explaining that the statute doesn’t seek to make illegal all such acts, only the narrower subset the phrases specify.

  Simplified somewhat, the language looks like this:

  Visualized this way it’s hard to see how the total number of charges might ever exceed the number of uses, carries, or possessions. Just as you can’t throw more touchdowns during the fourth quarter than the total number of times you have thrown a touchdown, you cannot use a firearm during and in relation to crimes of violence more than the total number of times you have used a firearm. So it is we now have in hand a pair of textual clues, clues suggesting that each charge must involve both an act of using, carrying, or possessing and that such an act must come during and in relation to (or in furtherance of) a qualifying crime.

  To the extent ambiguity remains, we don’t default to the most severe possible interpretation of the statute but to the rule of lenity. Our job is always in the first instance to follow Congress’s directions. But if those directions are unclear, the tie goes to the presumptively free citizen and not the prosecutor. Here that means the government must prove both a use, carry, or possession as well as a qualifying crime. The rule of lenity seeks to ensure legislatures, not prosecutors, decide the circumstances when people may be sent to prison. It seeks to ensure, too, that if a legislature wishes to attach criminal consequences to certain conduct—to deprive persons of their property, liberty, or even lives—it provides fair warning.

  Of course, Congress is free if it wishes to amend the statute to state that a second conviction doesn’t require a second use, carry, or possession. But unless and until it does, we will not relegate men and women to prison (or to decades more time in prison) because they did something that might—or might not—have amounted to a violation of the law as enacted. “In our legal order it is not the job of independent courts to bend ambiguous statutory subsections in procrustean ways to fit the prosecutor’s bill.”

  4.

  THE ART OF JUDGING

  We often hear these days that a judge who rules for a criminal defendant is “soft” on crime, that a judge who rules against an employee “likes” corporations, and so many other things along those lines. And maybe talking or writing about cases in these simplistic ways is easier and more exciting than trying to communicate the underlying and often technical (and, yes, sometimes boring) legal reasons why one side won and the other lost a particular case. After all, a case that on its surface looks like it’s about whether the accused should escape punishment or a worker can recover damages from his employer often winds up really being about a statute of limitations, the demands of precedent, or some essential rule of procedure that one side or the other neglected. And retelling these details is sure a lot less exciting (and a lot less likely to attract eyeballs and clicks).

  Maybe, too, we hear so much about judges “liking” or “disliking” this or that group of persons because we’ve lost sight of the limited job judges are meant to perform under our Constitution. Maybe we’ve come to think of them like politicians who make law rather than neutral arbiters who are simply supposed to follow it. Yet judges in our constitutional order aren’t supposed to act like philosopher-kings, care about their personal popularity, or spend time guessing whether their decisions will win acclaim or promote one cause or another. In the last chapter, I discussed some of the tools of interpretation that can help keep a judge safe from these pitfalls. But like any job, there’s more
to it than the tools; there’s the art of how those tools are used, and that’s the subject of this chapter.

  When it comes to the art of judging, I’ve learned over the years from watching my mentors and heroes that a good judge knows a few things. A good judge knows that often the lawyers in the case have lived with it for months or years and thought deeply about it long before the judge enters the picture; they deserve the judge’s respect as valuable colleagues whose thinking can be mined and tested to better the judge’s own. A good judge recognizes that existing judicial precedents reflect the considered judgment of judges who have come before and sometimes embody the settled expectations of those in our own generation. A good judge listens carefully to colleagues, appreciating the different perspectives each brings to bear. A good judge always questions not only the positions espoused by the litigants but his own tentative conclusions as they evolve. Pride of position and fear of embarrassment associated with changing one’s mind play no useful role; regular and healthy doses of self-skepticism always do.

  While judging is meant to be a relatively humble business, that does not mean it’s an easy one. In every case, someone must win and someone must lose and the only sure guarantee is that 50 percent of the parties before you will be unhappy with your decisions 100 percent of the time. Remaining faithful to the judicial oath to apply, and not to remake, the law means there will be many days when the judge finds himself bound to enforce statutes he personally dislikes or to hold unconstitutional ones he prefers. Often enough, the judge will find himself forced to rule against the “good guy” and in favor of the “bad” one because that is what the law and facts demand. Through it all, the judge can only take faith in the hope that, by enforcing the law’s demands rather than his preferences, he is serving a larger purpose by helping make real the rule of law and passing down its vital protections from one generation to the next.

  To do this and no more can be a lonely business. When a social crisis presses or a case becomes heated, the calls for that day’s going conception of “justice” are sure to multiply loudly. People can easily forget that the law is meant to protect the beloved and the detested alike, and a judge who enforces the law equally for disfavored and favored persons alike will not usually win a popularity contest. But our founders knew, expected, and even demanded this. To secure the “inflexible and uniform adherence to the rights of the Constitution,” they knew judges would need to show “fortitude” and “integrity” (Federalist No. 78). To encourage that kind of judicial courage—and to that end alone—they afforded judges extraordinary independence from the political branches and electoral pressures.

  When I think of courageous judges, I sometimes think of Frank Johnson, whose story is beautifully told in his obituary and by Judge Kethledge and Michael Erwin in Lead Yourself First: Inspiring Leadership Through Solitude. Appointed to the bench by President Eisenhower, Judge Johnson served first as a district and later as a circuit judge in his home state of Alabama. Seeking to follow the original understanding of the Equal Protection Clause and Supreme Court precedents like Brown v. Board of Education, he issued one decision after another that protected the civil rights of African-Americans in a time and place that required high measures of both fortitude and integrity. Johnson once said that his “philosophy as a trial judge and as an appellate judge is to follow the law and the facts without regard to the consequences.” Whether he meant “consequences” for the parties or for himself or both I don’t know, but the fact is that ruling according to the law and the facts alone was no easy thing. As a result of his rulings, his community branded him a pariah. He was shunned on the street and snubbed in church. His life was threatened repeatedly; crosses were even burned on his front lawn. His circle of friends grew small. To be sure, as he became a villain to some he became a hero to others. Time magazine put him on its cover in 1967. But there’s a lesson here too. For while in his day the judge was both hated and revered, the reality is that few remember him today. And that, I’ve learned, is exactly how it should be. For a good judge knows that flattery and scorn alike are fleeting and false guides.

  I think that is exactly what Justice White was trying to teach me so many years ago as we walked that hallway filled with portraits of past justices, and what he was trying to teach me when he later shared one of his favorite poems, “If,” which includes these lines:

  If you can trust yourself when all men doubt you,

  But make allowance for their doubting too…

  Or being hated, don’t give way to hating…

  If you can meet with Triumph and Disaster

  And treat those two impostors just the same…

  Yours is the Earth and everything that’s in it….

  ON COURAGE

  After my first full term on the Supreme Court, Drake University invited me to speak to its incoming students. The new students were sure to learn plenty about the law in their upcoming classes. So I hoped to encourage them to think about something else they will need as they head into our profession and civic society: courage. This speech may be directed to aspiring lawyers and judges, but I hope its themes speak more broadly too.

  Thank you for inviting me. I am delighted to be in Iowa at the home of one of the country’s oldest law schools, in fact the second oldest west of the Mississippi. As a product of the West myself, I can only imagine the foresight and courage of those who decided to start a law school in Des Moines in 1865, when this half of the country was pretty rugged—and in many ways pretty proudly lawless too.

  I understand most of you are incoming first-year students. Soon enough you will be neck deep in cases and statutes, rules and regulations. So today I want to take advantage of a quiet moment before all that begins to talk about something that cannot be easily learned by reading textbooks—something that’s often given too little attention in the legal profession, and something the founders of your law school displayed.

  That something is courage. Courage has been essential to the rule of law in this country from the beginning. The Declaration of Independence itself was, at heart, a complaint that the king had denied colonists the rule of law. As justification for their rebellion, colonists cited the fact the king had withheld assent to duly enacted legislation, refused trial by jury, and prevented colonists from playing a significant role in their own governance. About half of the fifty-six colonists who signed the Declaration were lawyers. They quite literally put their lives on the line to secure a representative government and one of just laws: By signing the Declaration, they became marked men who faced certain death if their cause failed.

  Courage remains as important in the legal profession today as it was then. Through our history the lawyers who have made the greatest mark on this country haven’t done so because they were smarter or were born into better families or held more important positions; it was because they were willing to stand firm for justice in the face of immense pressure and often at grave personal costs.

  The truth is, whatever role you wind up playing in this profession, courage will be required of you. There will be times when you will be tested by a client, an opposing party, or, yes, even a judge. When the temptation to give in and go along rather than stand firm in aid of a just cause will be great. These moments will come in large cases and in small ones, when everyone seems to be looking and when no one is around. Sometimes the need for courage will be obvious; sometimes it will be easy to overlook. But courage is a lawyerly virtue every one of us needs to cultivate.

  What do I mean by courage? Well, let’s start with what I don’t mean. I don’t mean blind bullheadedness or rudeness or incivility. We have all too much of those things in our culture and in our profession. They are pretenders of courage, not the real thing. For true courage will often require you to admit a mistake, hold your tongue, or wait to fight another day. When it requires you to stand up against the powers arrayed around you, it will also require you to do so with
not just respect but affection for your fellow citizen. What I mean by courage is what Atticus Finch meant by it in To Kill a Mockingbird. You may remember that Finch defended an African-American man wrongly accused of raping a white woman in Alabama during the Great Depression—and that in taking on the representation he faced criticism and threats from his friends and community. As he told his daughter in the book: “I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It’s when you know you’re licked before you begin but you begin anyway and see it through no matter what.”

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  THE FACT IS, OUR Constitution depends on and presupposes courageous lawyers of this kind. Consider the Sixth Amendment. It provides that “[i]n all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence.” When all the might of the leviathan is turned on a person, when he stands alone with nowhere else to look, he is at least guaranteed a lawyer. A lawyer who is expected to represent the least powerful and the most unpopular; to do so often for little pay and without regard to his own professional advancement. In our adversarial system, courage is equally expected from those of you who will be on the other side of the courtroom. The powers of a prosecutor, and the discretion to turn the might of the government against anyone of his choosing, are vast. So, too, is the temptation to focus on easy and unpopular prey. The pressure to win—pressure from your community and your co-workers, and pressure to further your own career—can be immense.