Read This: A Great Fourth Circuit Dissent

By Steve Klepper (Twitter: @MDAppeal)

Judge Andre M. Davis is, in my opinion, one of the two best writers on the Fourth Circuit. (The other is Judge J. Harvie Wilkinson III.)

Earlier this week, readers of the Fourth Circuit’s opinions were treated to a powerful dissent by Judge Davis in United States v. Kerr, No. 12-4775 (4th Cir. Dec. 3, 2013). Without taking sides between the majority and the dissent on the substantive question (the application of the Armed Career Criminal Act to North Carolina convictions), I’d like to highlight the dissent as an excellent piece of legal writing.

I’ll provide the first full paragraph of that opinion:

The majority opinion runs counter to Supreme Court precedent, Carachuri-Rosendo v. Holder, 130 S. Ct. 27 (2010), and effectively guts our Circuit precedent, United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). It violates principles of comity and federalism by directing federal district courts to ignore the careful sentencing decisions of their state counterparts. And it goes to such lengths all to affirm a twenty-two-year sentence imposed on a fifty-one-year old mentally ill veteran who had previously never served more than ten months in prison, tagging him with the moniker “armed career criminal.” We can do much better than this.

Slip op. at 18.

See how much ground Judge Davis covers in 103 words? The first sentence identifies the case law that would support a substantial petition for rehearing en banc. The second sentence sets forth the general importance of the question presented. The third sentence describes the stakes for the individual litigant. And the final seven-words, “[w]e can do much better than this,” put a pithy bow on top.

The rest of the opinion is a great read as well, right through the final sentence expressing Judge Davis’ deep regret for the majority’s “institutional ennui.” Slip op. at 31.

I suspect that, had Judge Davis been confirmed when first nominated in 2000, when the Fourth Circuit was a far more conservative place, he would have earned a place in history as the Court’s “Great Dissenter.”

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