Justice Kagan tells criminal defense bar to go big or go home

By Steve Klepper (Twitter: @MDAppeal)

In Luis v. United States, a fractured Supreme Court found that, in a prosecution for Medicare fraud, the federal government could not freeze untainted assets needed to retain defense counsel. The vote alignment was unusual, and none of the four opinions commanded a majority. The opinion drawing the most attention is Justice Kagan’s solo dissent, which Ian Millhiser has called “the most interesting opinion the Court has handed down this year.” That dissent, read together with a prior opinion on pretrial seizures, sends an important message to the criminal defense bar – go big or go home.

The certiorari petition in Luis asked the Court to distinguish, not overrule, United States v. Monsanto. That 1989 decision unanimously authorized pretrial orders freezing criminal defendants’ assets. In Luis, Justice Breyer’s plurality opinion applied a balancing test to decide Monsanto’s reach – finding that, when it comes to assets not traceable to the charged crime, the Sixth Amendment right to counsel outweighs the government’s interest in preserving assets to pay fines and restitution. Justice Thomas, concurring only in the judgment, found that Sixth Amendment’s text and history gave the defendant a right to use his untainted assets to pay for counsel. Justice Kennedy’s dissent, joined by Justice Alito, praised pretrial seizures as a tool to preserve money for restitution and fines.

Justice Kagan’s dissent took a different tack. Like Justice Kennedy, she found no principled basis under Monsanto to distinguish between tainted and untainted assets: “The thief who immediately dissipates his ill-gotten gains and thereby preserves his other assets is no more deserving of chosen counsel than the one who spends those two pots of money in reverse order.” But, calling Monsanto “troubling,” Justice Kagan openly invited future petitioners to make broader arguments and to challenge all pretrial orders freezing assets needed to retain counsel.

Justice Kagan’s Luis dissent sheds new light on her 2014 majority opinion in Kaley v. United States. That majority opinion held that defendants have no right under Monsanto to contest freeze orders by “challenging grand jury’s prior determination of probable cause to believe they committed the crimes charged.” Kaley drew a strong dissent from Chief Justice Roberts, who wrote a paean to criminal defense lawyers. Justice Kagan noted, however, that in “the past two decades, the courts in several Circuits have routinely held the kind of hearing [petitioners] seek …. Yet neither [petitioners] nor their amici (mostly lawyers’ associations) have found a single case in which a judge found an absence of probable cause to believe that an indicted defendant committed the crime charged.” Because only grand juries can decide probable cause, Justice Kagan concluded that “[w]hen we decided Monsanto, we effectively resolved this case too.”

In Kaley, Justice Kagan rejected a distinction that she believed to be unprincipled and merely symbolic. The Luis petitioner won on a broader claim, which undeniably has some teeth, but Justice Kagan opposed that half-measure. She thereby prevented the plurality from winning a majority – blocking what Scott Greenfield has called an “unprincipled balancing” that lets “transitory fears outweigh constitutional rights.”

Justice Kagan’s opinions in Kaley and Luis hint at a jurisprudence that contrasts with Chief Justice Roberts’ “long game.” He generally prefers incremental changes in the Court’s jurisprudence, rather than wholesale rejection of precedent. Petitioners may well omit broad alternative claims – for instance, “if Monsanto cannot be distinguished it should be overruled” – because they fear losing more cautious justices’ votes at the certiorari stage.

Now Justice Kagan is sending the opposite message. A problematic argument to distinguish a problematic precedent is unlikely to draw her vote at the merits stage or, by implication, at the certiorari stage. Her vote often is critical for criminal defendants. Notwithstanding the unusual alignment in Luis, Justices Thomas and Alito typically side with prosecutors in close cases, and the Chief Justice and (to a lesser degree) Justice Breyer often lean that direction. To keep Justice Kagan’s vote in play, the better practice may well be for a petition to argue both that a precedent is distinguishable and that it should be overruled.

Thus, Justice Kagan didn’t merely invite broader challenges to pretrial freeze orders. She encouraged the criminal defense bar to file broader constitutional challenges across the board.