Mimesis Law
6 July 2022

The Supreme Court’s Missing Retro View

Nov. 25, 2015 (Mimesis Law) — I love 1957 Cadillac convertibles.  My mother had one back in the day before our family went broke, and she succumbed to demon rum.

That got me thinking about retroactivity and Johnson v. United States.  There, on June 26, 2015, the Court held that the “residual clause” of 18 U. S. C. §924(e) (2)(B)(ii) violated the Due Process clause because it was too vague. This provision of the Armed Career Criminal Act increased the defendant’s prison term to a minimum of 15 years and a maximum of life.

The “residual clause” reads like this:

[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

(Emphasis added.)

I would sure like to know whether the holding in Johnson is retroactive for purposes of collateral attack. The Supreme Court did not tell us.

As the Eighth Circuit said last Friday:

Every circuit confronted with the issue of whether the Supreme Court’s prior holdings have made Johnson retroactive for purposes of § 2255(h)(2) has taken a different approach. See Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015) (holding Johnson announced a new substantive rule and prior Supreme Court holdings make it retroactive); In re Gieswein, 802 F.3d 1143, 1148–49 (10th Cir. 2015) (holding the Supreme Court has not held in a case or a combination of cases that the rule in Johnson is retroactive to cases on collateral review, and therefore it has not “made” Johnson retroactive); In re Rivero, 797 F.3d 986, 989 (11th Cir. 2015) (holding Supreme Court “made” new substantive rules retroactive in Schriro v. Summerlin, 542 U.S. 348, 351 (2004), but finding Johnson did not announce a new substantive rule under Summerlin); Pakala v. United States, __ F.3d __, No.15-1799, 2015 WL 6158150, at *1 (1st Cir. Oct. 20, 2015) (per curiam) (noting the circuit split, declining to address the issue, and finding petitioner made prima facie showing of retroactivity where government conceded retroactivity).

Woods v. United States, No. 15- 3531, slip op. at p. 3 (8th Cir., November 20, 2015)

The Supreme Court almost never makes a ruling on questions that naturally follow from one of their decisions until and unless there is a second case that presents the derivative question.  I understand the stuff about concrete cases and controversies and the related prudential concerns that are a part  of the Supreme Court’s practice.  That said, I have a modest proposal for federal criminal cases similar to Johnson; that is, for cases that may change the sentence length of a numerous federal offenders.

When the Supreme Court declares a federal criminal statute (or Guideline) unconstitutional that calls into question the length of sentences to be served by a significant number of federal inmates, the Court should, in the same case, decide the issue of retroactivity.  There are various ways that this could be done that would assure the Court is well informed.

In situations like those raised in Johnson, offenders should not be asked to bear the sole risk of spending any more time in federal prison than absolutely necessary. The old (and frequently overused) saying that “Justice delayed is Justice denied” really does apply in circumstances like the one presented in Johnson.

Richard G. Kopf
Senior United States District Judge (NE)

13 Comments on this post.

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  • Keith
    25 November 2015 at 9:31 am - Reply

    Judge Kopf,
    Do you think it’s merely a trend towards deciding the minimum amount necessary for the case and controversy before them or is there also an element of not wanting to see their pictures next to newspaper clippings of people being released from prison early?

    • shg
      25 November 2015 at 9:42 am - Reply

      If the ruling fails to provide sufficient guidance so that it can be applied by the courts below, has the Supreme Court really decided the minimum amount necessary?

      • Keith
        25 November 2015 at 10:13 am - Reply

        Do litigants ask about retroactivity in their briefing and arguments?

        • shg
          25 November 2015 at 10:35 am - Reply

          No, but the Supreme Court justices kinda know that when the announce a new rule that alters past law, retroactivity is invariably the question that must be answered. It’s not a mystery.

  • Richard G. Kopf
    25 November 2015 at 11:24 am - Reply


    In most cases, there are genuine reasons why a court, especially the Supreme Court, should not answer questions that are not directly presented by the parties. That said, I agree with SHG that “retroactivity is invariably the question that must be answered. It’s not a mystery [to the Court].”

    While judicial modesty, refusal to give advisory opinions, standing, concreteness, prudence and the like are generally good abstractions for the Supreme Court to follow, practicalities are important too. In these types of federal criminal cases, and in my estimation, the practicalities matter far more than the abstractions.

    All the best.


    PS In answer to your real question, I vacillate back and forth between “they don’t give a shit” or “they have no clue.” Snark aside, I don’t think it is because they are lazy. I don’t think they fear adverse publicity either. I rather think they are disconnected.

    • Keith
      25 November 2015 at 11:33 am - Reply

      Thanks. I appreciate not only your reply, but the connection you offer between the Court and the public. Nice to see you back in the blogosphere.

    • shg
      25 November 2015 at 12:02 pm - Reply

      I’m still struggling with the “disconnected” explanation. Not that I have a better one, but they must realize the havoc they wreak.

      • Richard G. Kopf
        25 November 2015 at 12:44 pm - Reply

        Good point.

        I meant that they value abstractions over practical problem solving and in that sense they are disconnected from those of us on the ground (or in prison). Or, my elaboration was pure bull shit and you called me on it! Your choice.

        All the best.


        • shg
          25 November 2015 at 1:23 pm - Reply

          Maybe if we paid them more, they would write longer opinions that covered both theory and practical needs.

          • Richard Kopf
            25 November 2015 at 4:44 pm -


            Yea, that’s the ticket. Or perhaps a vacation in the south of France. Oh, wait ….

            All the best.


            PS. I loved the interview with Jeff. Two surpassing talents, both of you.

          • shg
            25 November 2015 at 5:38 pm -

            It was all Jeff. He’s a very impressive guy.

          • Jeff Gamso
            26 November 2015 at 6:27 pm -

            Thank you both.

            As for SCOTUS, I think oblivious (which is probably where you were going with “disconnected”) is likely the answer. It’s not that they don’t know, intellectually, that they’re leaving chaos in their wake. It’s that they don’t think in those terms because they’re not on the ground doing the daily grunt work of judges who have to figure out how to apply their decisions. That’s also why, in so many areas they offer gnomic abstractions in the form of rules that don’t provide much actual guidance about how to apply them.

  • Andrew McGovern
    5 February 2016 at 7:23 pm - Reply

    Great judges and great courts distinguihs
    between the fundamental and the casual. They make the law to
    grow not by changing it, but by adapting it, with an understanding of
    the progress in our civilization, to new social conditions. Words written along time ago .