John G. Roberts, Jr.: We'll hear argument first this morning in Case 17-778, Quarles versus United States. Mr. Marwell.
Jeremy C. Marwell: Mr. Chief Justice, and may it please the Court: For centuries, the essence of burglary has been punishing those who trespass for the purpose of committing a crime. That was the rule at common law. It remained the majority view at the time of ACCA and Taylor. For two main reasons, the Court should confirm that generic burglary retains that traditional requirement of contemporaneous intent, intent at the time of the initial trespass. First, the sources that matter under Taylor show that "remaining in" was understood as a modest expansion of the traditional offense to cover those who entered lawfully, but then overstay their welcome to commit a crime. But the government reads Taylor's use of that one word, "remaining in", as a sharp break from that tradition. Under that view, "remaining" would cover anyone who enters unlawfully, regardless of whether they had that burglarious intent at the time of entry as long as the intent was formed later. And nothing in Taylor or the sources that existed at the time of ACCA suggest an intention or acknowledgment of making such a dramatic change.
Ruth Bader Ginsburg: Well, something -- something in Taylor tugs the other way; that is, Taylor said that there would be few statutes that were broader than the generic, and even in, what, 1986, there were more than a few statutes that are like the statute before us.
Jeremy C. Marwell: Yes, Justice Ginsburg. The government claims there were six statutes as of -- or six states as of 1986 that had defined remaining-in burglary more broadly than -- than our definition. I think that's well below the threshold. And, in fact, Taylor contemplated that there would be a few. It gave the example of California, in which shoplifting qualified as burglary.
Ruth Bader Ginsburg: I thought --
Jeremy C. Marwell: So --
Ruth Bader Ginsburg: -- it was higher? I thought it was somewhere between nine and 14?
Jeremy C. Marwell: Well, the -- the government claims six statutes. There were 29 statutes as of -- 29 jurisdictions as of 1986 that had remaining-in variants, but I think when you -- when you look at how the states had interpreted those and -- and in some cases, at the plain language of the statutes, I think the best reading of where those states were -- it shows that a majority, even of the remaining-in stat -- states, retained the traditional requirement of contemporaneous --
Samuel A. Alito, Jr.: Well --
Jeremy C. Marwell: -- intent.
Samuel A. Alito, Jr.: -- if we look at the statutes in existence in 1986, and we count only those in which there is a judicial opinion interpreting the statute on the remaining-in question, and not those which contain dicta in cases involving -- where the -- where there was an intent at the time of entry, what is the breakdown?
Jeremy C. Marwell: Well, as you know, we -- we think you should not only look --
Samuel A. Alito, Jr.: I know.
Jeremy C. Marwell: -- at the remaining --
Samuel A. Alito, Jr.: You think we should look more broadly. You want us to count all the statutes in which there is no remaining-in burglary to start out with.
Jeremy C. Marwell: Correct --
Samuel A. Alito, Jr.: Okay.
Jeremy C. Marwell: -- be -- because Taylor refers -- Taylor instructs to look at how a majority of states define burglary, and --
Samuel A. Alito, Jr.: Well, we know that Taylor -- that Taylor's definition of burglary includes "remaining in," does it not?
Jeremy C. Marwell: Correct. And --
Samuel A. Alito, Jr.: All right. So then why would we look at the -- the statutes that don't have any remaining-in element at all?
Jeremy C. Marwell: Because the 22 jurisdictions that had just entry burglary show a widespread adherence to that traditional rule, that you needed intent at the time of entry. And the government's rule, the government's interpretation of the Taylor test takes that away because they say, if you enter unlawfully without any intent at the time and you form intent later, that's burglary. And that's not consistent. That's much broader than the 22 entry states. But I think -- if -- if I can respond to the question about just looking at the 29.
Samuel A. Alito, Jr.: Right.
Jeremy C. Marwell: There are states like Alaska, which has the Arabie decision from 1985; New York, which has the Licata decision from 1971; Connecticut, which has the Belton decision from 1983, where the court said that "remaining in" applies to a lawful entry followed by a subsequent formation of intent. And I take the point that may not be 100 percent on point with the question, but we think it forecloses the government's reading, again, because they -- that preserves the requirement of intent at initial unlawful entry. There are also some statutes, Justice Alito, where the plain language of the statute, we think, supports our view. Maine had a statutory sentencing provision that said you can be punished not only for burglary but also for the offense that you commit after entering or remaining. Maine had that entry or remaining statute.
Elena Kagan: And I guess what strikes me, Mr. Marwell, is that the distinction just wasn't -- you know, it wasn't really present at that time, that -- that -- that now we can look and see how there really is a split on this question, but in 1986, there were so few cases or -- or statutes that clearly made the distinction and put a state on one side or the other of it. And if that's the case, if the distinction wasn't salient, why would we assume that Congress meant to incorporate it into the burglary element?
Jeremy C. Marwell: Well, I -- I think the Court typically interprets statutes to assume some degree of continuity with what had come before, and here Taylor acknowledged the common law rule. And we have a number of authorities that suggest that this contemporaneous intent requirement was -- was the essential thing that differentiated burglary from trespass.
Sonia Sotomayor: What do you do with the "surreptitiously" definition that was in existence before 1986? How does that inform our analysis?
Jeremy C. Marwell: So the Court said in Taylor that it -- it was adopting a definition that was very close to the 1984 statute, which had the surreptitious. I think surreptitious helps us. It certainly indicates that remaining was not a continuous state in the sense that the government says it was. And I think "surreptitiously," as our amicus explains, has a connotation of doing something for a -- for -- for a fraudulent reason or staying -- staying past your welcome for the purpose of committing a crime.
Sonia Sotomayor: Justice Alito asked you what the lineup was of states that read it your way and the states that read it the government's way. You mentioned at least three or four that predated 1986 that read it your way. At 1986, how many states had opined in the government -- in the government's way?
Jeremy C. Marwell: The government has five where there were judicial decisions in Texas, which adopted a slightly different statutory language that made clear that it was covering anyone who was present in and then committed. I think -- in our blue brief we -- we cited 15 jurisdictions, 15 of the 29, but I think, again, if -- if we look at the entry states, that gets us 22 as of 1986. And then we get over the -- the hurdle of Taylor --
Sonia Sotomayor: Well that's --
Jeremy C. Marwell: -- which is --
Sonia Sotomayor: -- 15 is a -- is a third of -- not quite a third, a little less than a third, of the states. Isn't that enough to say that that's what Congress had in mind? If Taylor says only a few would be excluded by its definition, that's a lot more than a few.
Jeremy C. Marwell: Well, we -- Taylor says you're trying to craft a generic burglary definition that aligns with how most states viewed it, viewed burglary, at the time. And we think most states viewed burglary in -- in our way. And so the government has a different reading. If you adopt our rule, that it -- it will exclude six jurisdictions as of 1986. And I think that's below the threshold that the Court has -- has declined to read a statute in a way that might exclude ten jurisdictions.
Sonia Sotomayor: So I'm sorry, what was the 15 you were talking about?
Jeremy C. Marwell: Fifteen are jurisdictions that read "remaining" in our way.
Sonia Sotomayor: Oh, I'm sorry, I -- that's not the question I asked.
Jeremy C. Marwell: Oh, I'm sorry.
Sonia Sotomayor: As of 1986, how many jurisdictions read it the government's way?
Jeremy C. Marwell: Six.
Sonia Sotomayor: Six.
Jeremy C. Marwell: Five -- five using intermediate, mostly intermediate state court decisions, and one was Texas.
Sonia Sotomayor: What has -- how -- how large has that number grown since 1986?
Jeremy C. Marwell: So the government cites 18 jurisdictions today. But we think this Court's decision in Castleman and Stokeling looks -- when it asks the question of how many jurisdictions would be excluded, is looking to the time that Congress adopted the statute. And I think that makes sense. Otherwise you are interpreting the word "burglary" in ACCA in 1986 to expand potentially in the future without any further congressional action. And that's why I think in Stokeling and Castleman the Court said we're looking to how many jurisdictions would be excluded as of 1986.
Brett M. Kavanaugh: The -- the LaFave treatise at -- at the time said, "far more common today is the burglary statute which covers one who either enters or remains in the premises. This means, of course, that the requisite intent to commit a crime within need only exist at the time the defendant unlawfully remained within." So how do you respond to that --
Jeremy C. Marwell: So the --
Brett M. Kavanaugh: -- contemporaneous evaluation of the law?
Jeremy C. Marwell: So I think that language could -- could support our rule or the government's rule, potentially, but if you look at the rest of what LaFave said, LaFave --
Brett M. Kavanaugh: Well, let's just stick with that --
Jeremy C. Marwell: Okay.
Brett M. Kavanaugh: -- sentence. How could it -- it said the intent "need only exist at the time the defendant unlawfully remained within."
Jeremy C. Marwell: And -- and we think that "remaining within" refers to that point where somebody overstays their welcome. And I think you can see that by how LaFave discussed the other remaining-in statutes. They said -- the LaFave treatise said, for instance, it gave one example of what the remaining statutes were intended to do and it's the classic bank customer who comes into the bank while the bank is open and then stays on to steal the bank's money. That, I think, is the -- is the classic example of what states were trying to get at when they added the words "remaining." But LaFave then talked about the Texas statute and said Texas has a different -- different words in its statute and it says, if you are present in and you commit a crime, then that's -- that -- that counts as burglary in Texas. And LaFave said that's -- that was intended to fix potential concerns about proof that would exist in the remaining jurisdictions.
Stephen G. Breyer: Is there any reason to think that the person who stays in the bank, and then, ah, what a nice idea, I'll help myself to some money, is any the less violent or at risk of violence or risk of -- is there any less risk there than when he gets the idea of going into the bank two weeks earlier?
Jeremy C. Marwell: Yes. I think the -- the -- the existence of pre-formed intent, so somebody who comes to the bank with the advance plan to commit another crime shows that they will be more resolute in their desire to accomplish that crime. It may result in them bringing a weapon because they know they're going to do that. And I think it aligns with this -- with the fact that ACCA is governing career criminals, trying to select people who have that profit motive to do multiple crimes. And you look at the fact patterns of the cases that are really the point of disagreement between us and the government, you know, Gaines from the New York Court of Appeals, a homeless person who breaks into a warehouse to get out of the cold, while he's in there decides to grab a jacket and is caught coming out, or the case of young people who break into a house not -- not intending to steal something -- this is the JNS case from Oregon -- take something while they're in there and caught on the way out.
Stephen G. Breyer: There are --
Elena Kagan: Part of --
Stephen G. Breyer: -- no -- no people who think, well, I want to rob this bank, I'm a little worried about the noise if I break in, or I guess, I want to rob this bank, he thinks it when he's inside. A night watchman, a teller who forgot to go out -- I don't know if that exists, but I can't quite figure out -- I'm sure there is some cases both ways, I would think.
Jeremy C. Marwell: So --
Stephen G. Breyer: Anybody ever look at that and --
Jeremy C. Marwell: Well, so Taylor, just -- just to -- Taylor referred to the risk of violence when somebody does an intrusion to commit a crime. And I think that's -- that captures this idea of --
Stephen G. Breyer: Right.
Jeremy C. Marwell: -- of why we care about pre-formed intent.
Elena Kagan: But -- but part of our understanding of why burglary is a -- is a risky crime is when the burglar meets somebody else, the victim, the police officer, whoever. And that person is not going to know when the criminal formed his intent.
Jeremy C. Marwell: That -- that's correct. But two -- two points, Justice Kagan: One, it's -- the government's position comes very close to saying that any time you are present somewhere where you're not supposed to be, there's that risk of a violent confrontation. And Congress did not use the word "trespass" in ACCA. It could have enumerated trespass. I think the government's position comes close to that. And then, second, I -- I do think there is, you know, a distinction from the -- from the victim or the property owner's perspective of somebody who comes having pre-formed the intent to do something else as opposed to the innocent rationales of somebody who's trespassing for -- by assumption for -- for doing something other than committing a crime.
Samuel A. Alito, Jr.: Is the offense we're concerned with here, his third degree home invasion conviction in Michigan, anything like these cases that you've just described? In that case, as I understand it, he assaulted his girlfriend and then -- and this is what the judge said as the factual basis for his no contest plea -- "The victim reported that Mr. Quarles broke in through a screen window and assaulted her while in the house." And the judge said, "We certainly can infer that he had an intent to commit an assault while he was entering." And this establishes that he did commit an assault while he was in the house.
Jeremy C. Marwell: So the -- the facts that you've recited, Justice Alito, I think would not be available to a sentencing court. That was a colloquy in the state court where Mr. Quarles pleaded no contest. So he was not asked to confirm those facts. And I think that --
Samuel A. Alito, Jr.: Well, doesn't -- doesn't the judge, in order to accept a no contest plea, have to establish, be satisfied that there is a factual basis for the plea?
Jeremy C. Marwell: I think -- well, in Michigan law, no contest is -- is -- is acquiescing in the imposition of punishment but not confirming or denying the facts. And I think under --
Samuel A. Alito, Jr.: So the judge doesn't have to be satisfied -- we'll check it out. Under Michigan law -- this is surprising to me -- a judge can accept a non -- a no contest plea without ascertaining that there is a factual basis for the plea?
Jeremy C. Marwell: Even if so, I think under this Court -- the way this Court said in Shepard and Mathis, the kinds of facts that are available to the sentencing judge, those are limited to ones where the defendant confirmed the accuracy. But I think under, under the Court's categorical approach, what matters is the text of the Michigan statute, which is very broad. It's as broad as that Texas statute because it says any time you're present in and you -- and you commit. And if there's a concern about whether the question presented is presented, the government didn't raise that in its brief in opposition. And the Sixth Circuit very clearly engaged with the question of what "remaining in" means.
Brett M. Kavanaugh: Taylor didn't say that the statute had to exactly correspond to generic burglary. It said "substantially corresponds"?
Jeremy C. Marwell: That -- that's right. But we think that the -- the -- the -- the element here of contemporaneous intent is what's been called the most fundamental essence of burglary. So I think substantial -- it's hard to say that it substantially corresponds if it's missing, you know, the core element.
Ruth Bader Ginsburg: When you gave the number six, did that exclude all the states with remaining-in statutes that had not interpreted those statutes?
Jeremy C. Marwell: That's correct. Well, the -- the number six, I think, was how many states at the time of ACCA had -- had clearly adopted the government's reading. And the government says -- identifies only six. We think the other jurisdictions are most fairly read to have adopted our rule, especially when viewed in light of the background interpretive principles, that you're going to assume a degree of continuity and you're going to not assume that the states had completely reconfigured the offense of burglary just by adding a word "remaining."
Ruth Bader Ginsburg: Did that turn out to be the case, states that had remaining-in statutes in 1986 and then interpreted them later?
Jeremy C. Marwell: Well, some jurisdictions have gone towards the government's view. The government identifies 18 as of today. There are some jurisdictions that have adopted our view, and 19 jurisdictions that have not adopted any remaining-in variant and have stayed only defining burglary as intent at entry. So --
Sonia Sotomayor: Give me the count again?
Jeremy C. Marwell: So if the question is what's the headcount today?
Sonia Sotomayor: Yes.
Jeremy C. Marwell: Nineteen states retain the intent at entry, so entry only. Three states have remaining statutes and they have adopted our rule. Eighteen states, the government has identified today as adopting their rule. And I think that leaves 11, that gets us to 51 jurisdictions, where the government implicitly says they haven't resolved the question.
Elena Kagan: The -- the 18 states that the government says have their rule, do they have other burglary statutes or would we be essentially removing the only burglary statutes of those states?
Jeremy C. Marwell: So it -- it -- focused on today's laws, that's going to depend on how the states have treated the statutes. We cited in our brief the Priddy case from the Sixth Circuit. Tennessee is one of the statutes. The Priddy case decided that Tennessee was divisible. Michigan has two other burglary statutes in separate sections with separate punishments that apply to breaking and entry, including of a dwelling. They don't have the remaining-in issue. So that would remain regardless of what you decided here. And then I think it would depend on how -- the divisibility --
Brett M. Kavanaugh: What --
Jeremy C. Marwell: -- analysis.
Brett M. Kavanaugh: What percentage of burglaries do you think are remaining-in versus entry burglaries?
Jeremy C. Marwell: So what we -- one thing we know at the time of ACCA was that the New York burglary statute was very influential. And the commentaries to that burglary statute, which we cited in our reply brief, say explicitly that entry was the common, more common variant.
Brett M. Kavanaugh: Far more common, right?
Jeremy C. Marwell: Yeah. Yeah. And I think that -- that shows why the states would not have completely reframed their burglary statutes through the unacknowledged and unexplained addition of two words, "remaining in."
Brett M. Kavanaugh: But it shows -- and this is an effect of Taylor, but the effects of adopting your position would be to knock out all burglaries from potentially 18 or more states as predicates?
Jeremy C. Marwell: So I don't -- so, again, I think the -- the relevant question is how many would have been knocked out at the time Congress enacted ACCA, since that, I think, is the fairest reading of Castleman and Stokeling. As of today, I think it depends on the divisibility analysis. And there are a number of jurisdictions of that 18 where I think it would be a -- a litigated issue, and a number of jurisdictions that have other burglary statutes that aren't affected. So --
Elena Kagan: Is -- is there any way to tell, maybe there's not, among remaining-in burglaries, what proportion of them are people who formed their intent later versus formed their intent at the moment of decision to remain?
Jeremy C. Marwell: I'm not aware of a statistic on that front. I -- I would say that it -- the benefit of doing the 50-state survey gives you a sense of where that issue has been material. And you see it in the cases cited in our brief, where you either have somebody who, you know, was lawfully present, went into the bank or into the store, or you have a situation where the authorization to enter was disputed. And so the prosecution will charge both. And often the easier course, if you take the government's reading, is, well, don't worry about whether intent existed at the time of entry because, you know, there was a commission of a misdemeanor or a crime while you're -- while you're --
John G. Roberts, Jr.: It has to be -- it has to be very unusual that someone enters a bank and only then does it occur to them that that's where money is that they might want to rob. (Laughter.)
Jeremy C. Marwell: Well, I -- I think the reason that the states adopted these remaining-in variants is because you're right in the sense what they were trying to get at was the person who came to the bank with that plan and they were going to avoid having to break in because they could enter lawfully. And there was a sense that that person is a burglar, just like the one who actually breaks and enters. But I think that supports our view because those are captured under both -- both sides' tests because that -- that person has the intent at the time he -- his presence in the -- in the bank becomes unlawful.
Samuel A. Alito, Jr.: What do you make of Taylor's definition of -- of burglary, where the Court said that the contemporary meaning of burglary means at least the following, and -- I'm sorry, contains at least the following elements: An unlawful or unprivileged entry into, or remaining in a building or other structure with intent to commit a crime? How do you read -- how can you read that consistent with your interpretation?
Jeremy C. Marwell: I think the way the Eighth and Fifth Circuits and Seventh Circuits have which is that, you are, A, defining burglary, coming at it at against the background of a common law rule that everyone agrees, the government and us, had this contemporaneous intent requirement. And you're pairing "remaining" with "entry." And everyone agrees entry is a point in time. So you have the contextual -- your -- you inform the meaning of "remaining" by context. And then you have "remaining" modified by the words "with intent." And as the examples --
Samuel A. Alito, Jr.: Yes, it's remaining --
Jeremy C. Marwell: -- of some --
Samuel A. Alito, Jr.: -- remaining with intent to commit a crime.
Jeremy C. Marwell: Right.
Samuel A. Alito, Jr.: So where do we get the -- the -- the point of entry there?
Jeremy C. Marwell: I -- I think you get it --
Samuel A. Alito, Jr.: I'm sorry, the time of entry. Where -- where do you -- how do you read into that the requirement that the -- the intent has to be present at the time of entry?
Jeremy C. Marwell: Because you're reading "remaining" in the context of entry. And -- and you are trying to define an offense of burglary at a time where 22 states unquestionably said you have to have intent at entry.
Brett M. Kavanaugh: What do you mean by --
Jeremy C. Marwell: So --
Brett M. Kavanaugh: I'm sorry to interrupt.
Jeremy C. Marwell: I'm sorry.
Brett M. Kavanaugh: What do you mean by context there? It says "or" -- entry into "or" remaining in.
Jeremy C. Marwell: Well, I -- the -- this Court in the Neal case that we cited in our reply brief has said when you have a pair of words, you know, disjunctive pair of words, you look at one in the context of the other. And --
Brett M. Kavanaugh: But there are two distinct concepts, and at least I read Taylor as saying these two distinct concepts are ways you can fall within generic burglary.
Jeremy C. Marwell: But they're two distinct concepts engaged in the effort of defining what burglary was in most states at that time. And I think if you read "remaining" in the continuous way that the government says, it all but eliminates the intent-at-entry requirement. I don't think that is what Taylor would have done explicitly. And, again, that's because --
Brett M. Kavanaugh: Although there were some states, you acknowledge, that supported the government's position at that time and that are cited in LaFave, which is cited right after this sentence in Taylor, is the LaFave treatise. I --
Jeremy C. Marwell: Correct. And -- and Taylor acknowledged that its definition was not going to be perfect or was not going to be maximalist in the sense of capturing every single state. It gave some examples: The vending machine; California, shoplifting is burglary. It said there may be some states that are broader. But just to get back, the government's definition puts entry completely out of focus, as the Fifth Circuit says, and it makes entry the small minority view because every unlawful entry followed by formation of intent is burglary under their view. And I just think Taylor did not give an indication of -- of changing, diverting that far. If -- if you read Taylor as creating simply an empty -- empty vessel to be filled in as states decided, you know, whether they would expand their burglary statute, I don't -- that's an odd way to read a criminal statute.
Samuel A. Alito, Jr.: I mean, what you say is a -- is an argument that one might make to a state legislature in defining burglary, because the other definition can potentially catch some of these people who have less -- less dangerous characteristics -- that where their -- that individual crime has less dangerous characteristics, but under ACCA, the person has to have three prior convictions. And here your client has two prior convictions for assault with a deadly weapon, so this is just the third. So this is not a case where this definition is -- is imposing a severe punishment on somebody who, you might argue, is less blameworthy; isn't that right?
Jeremy C. Marwell: Well, I think under -- under the Court's categorical approach, the -- the -- the question is the statutes, not the -- not the conduct. And I don't think that the -- just needing three necessarily speaks to what the three needs. We cited in our reply brief, you know, there are certain populations that are subject to multiple, you know, low-level offenses and so might well get three. If I could reserve?
John G. Roberts, Jr.: Thank you, counsel. Mr. Tripp.
Zachary D. Tripp: Mr. Chief Justice, and may it please the Court: Petitioner's conviction here is a burglary conviction for purposes of ACCA. And if I could just make three or four points why that's right and try to simplify things a bit in response to the questioning. So, first, I think you can really just begin and end with the text here. The statute says burglary. This Court has already held that that means any statute with these basic elements which include remaining with intent and -- and that's true regardless of the exact definition or label. And -- and this is just what it means to remain in a place. You remain there as long as you stay. That's what this Court already held in Cores, the case about the alien crewman who remained in the United States unlawfully because he was still here. And that's also how this works in the law of trespass, which I think is really important here because it has the same pairing, to enter land or remain on land without permission. And the "remaining" prong for trespass is a continuing trespass. It's telling you that if you're on somebody's else's land without their permission, it doesn't matter how -- how you got there, how long you've been there; you're under a continuing obligation to leave. And I think the -- the right way to understand the -- the -- the Taylor formulation and -- and really what's happening in these state laws is -- is aligning their burglary law with trespass. So that there's a trespasser in your house or some other building or other structure like that, and they have the intent to commit the crime, that's what burglary is. And then I think another important point about the text here, right, is --
Elena Kagan: Mr. Tripp, the -- the formulation that Taylor used, and I agree it tends to support your position, but, I mean, nobody could think that the person who was writing the Taylor opinion had this issue in mind at that point. So it's one of these things of how do we read our own opinions and do we read them like statutes or do we read them a little bit differently, understanding what was and what wasn't in the mind of the Court at that time?
Zachary D. Tripp: Right. And -- and I think an -- an important part is the next piece that I was about to get to where it says that -- that -- the statutes just need to have these basic elements and that it doesn't matter how exactly they are defined and labeled. And so I think what it tells you is that when there's variation among the states, right -- Congress was trying to cast a broad net. It was trying to pick up burglary statutes, the typical range of variation. And so when there's variation among the states about how do you define the "remaining" prong in their burglary statute and how long does it last, how does it interact with the "intent" prong in their burglary statute, it's still a burglary statute. It -- it doesn't matter for purposes of Taylor. It's just too far down in the weeds. And I think --
Sonia Sotomayor: But then what do we do with the common law that has informed us? And I do understand that in -- in Taylor we were very clear that the -- burglary had evolved from the common law in -- in dramatic ways, including the fact that most of the time burglary was limited to dwellings, and in more recent generations, it has expanded to a break-in to any structure that people own. But, still, your definition, your reading would be Congress intended to sweep in every statute that called itself burglary?
Zachary D. Tripp: It -- it --
Sonia Sotomayor: Basically that's you're -- you're -- what you're saying. They weren't looking at the common law. They weren't looking at the majority of states, which were -- who defined it as just "entering in." When they previously used the word "surreptitiously," they were talking about -- they were thinking about everybody who remains without permission, even if they're not there surreptitiously.
Zachary D. Tripp: So I -- I -- I think there is a lot packed in there. A -- a couple responses. I mean, I think what Congress was trying to pick up was the typical range of burglary statutes in the states. And --
Sonia Sotomayor: So why isn't the typical the majority, the ones where "entering in"?
Zachary D. Tripp: So the typical, even in 1986, most states had remaining-in burglary. The 29 states had it. That's undisputed.
Neil Gorsuch: Well --
Zachary D. Tripp: Most of them, 27 of them, it was almost verbatim --
Neil Gorsuch: If -- if I might on that, just to interrupt, I'm sorry, but just -- just to get the playing field right, we have the 29, but then we have, I believe, about six where we have subsequent judicial decisions indicating that it required intent upon entry, some of which were later overturned by legislatures or whatever. And you're asking us to not pay attention to those six and use 29 rather than, I think it's 23, something like that. I might have my numbers not quite right, but it's slightly under half. And you asked us to ignore those subsequent decisions because they came after 1986. But we usually look at statutes and -- and -- and say judicial, later judicial decisions we're interpreting as they were written at the time, retroactively, and that they're not pieces of legislation that have prospective effects. So I'm not sure why we would ignore those six or whatever number of cases it would be and take us down to 23 rather than 29. So I'm sorry for interrupting, but if the premise of the entire discussion is it's 29, I guess I need some help on --
Zachary D. Tripp: So --
Neil Gorsuch: -- whether that's the case.
Zachary D. Tripp: -- I think the answers sort of all get to the same place, and -- and -- and that I think really our position is no matter how you look at this and how far you dig, you're going to get to the same answer. Right? So Taylor's formulation is --
Neil Gorsuch: Well, I'm confident the government wants to win this case no matter what. (Laughter.)
Zachary D. Tripp: No, if I -- If I could -- if I could just walk you through --
Neil Gorsuch: But if you could walk through 29 --
Zachary D. Tripp: Yeah.
Neil Gorsuch: -- versus 23, and why I should pay attention to one number rather than the other.
Zachary D. Tripp: So -- so just -- the Taylor formulation is enter or remain. Twenty-nine states had remaining-in burglary, and the overwhelming majority of them were almost verbatim that formulation, just enter or remain, right, that's what they were saying. This is just what it means to remain in a place. Right? And so then if you were trying to figure out what is it the states were doing, again, I think the first place you would look is their statutes. Their statutes just say "remain." If you look at their judicial decisions in 1986, or imagine your Congress drafting this statute, literally every single judicial opinion that has ever -- every single state that has ever resolved this timing question has read "remain" to mean remain, to -- to -- read it literally to cover the entire time that you are trespassing. I mean, I -- I just think that the --
Neil Gorsuch: Maybe you could get to my question at some point.
Zachary D. Tripp: Right, and --
Neil Gorsuch: Which is why should I ignore those later judicial decisions? I guess I'm just looking for a reason why.
Zachary D. Tripp: I -- I guess, we're -- I'm not trying to count -- so we're trying to put -- put two -- two different figures. I'm trying to -- to understand sort of two different points in time. One is: What was Congress thinking in 1986? And I think if you're just trying to approach this from the perspective of a legislator who is trying to understand what this is in 1986, the answer is the state of the law in 1986. The other thing that we're looking to, just in this conversation, is: What would the effect of adopting Petitioner's ruling be? And there we have to look to the change in the law. Right? And -- and I think they -- they recognize this. But today the number is that there is 18 states that have -- that read "remain" to -- to mean remain, either in their case law or with statutes that have adopted that rule, and those states have a population of 130 million people. We're talking about tossing out an enormous number of burglary prosecutions. And I really want to emphasize how much this would be the tail wagging the dog. And in -- in response to Justice Kavanaugh's question, I mean, this is very clearly, I think if you look at these cases --
Neil Gorsuch: You -- you -- just -- just to -- I'm sure the practical effects for the government are terrible and you don't want my sympathy, I'm sure, on any of that, but I -- I guess you'd agree with me judicial decisions normally operate retroactively?
Zachary D. Tripp: I agree with you that, yeah, that -- that ordinarily we understand the judicial opinions here to -- to reflect the state of the law as it existed at the time. I'm just trying to --
Neil Gorsuch: How -- and I guess I'm just on a totally different tangent. We had some conversation last term in Stitt and Sims about how we approach these cases generally. And I guess I'm wondering whether the government's given any further thought to that? This approach of counting up states and -- and then asking whether this statute matches the platonic ideal of burglary in 1986, according to, however, 50-state survey, it's not very popular with lower courts, to say the least, and it's not easy to do. And it's -- and it -- one might also ask whether it's fair to -- whether it puts anybody on fair notice what -- what their conduct is, if it is later dependent upon this mathematical exercise.
Zachary D. Tripp: So --
Neil Gorsuch: Has the government considered about whether we should consider whether the states, if they call some things burglary, whether that should be dispositive, for example?
Zachary D. Tripp: To -- to my knowledge, we haven't changed our position on -- on -- or adopted any sort of new thing on that. But I -- I would say I think this case is honestly an opportunity to try to simplify things, that what you can just say here is that the Taylor formulation, it means what it says, right, that -- that enter or remain, that's good enough, that it doesn't matter how exactly the states define these things. And there's disagreement among the states on all kinds of other subsidiary issues. Right? What constitutes -- what makes your presence unprivileged, whether it extends to the whole building or only part of it? What exactly constitutes an entry? And Petitioner has given you no logical stopping point. And the reason is because they're already way past it. Right? Taylor says that the -- the disagreement among the states about how to interpret these -- these different elements, it just doesn't matter. There is still burglary statutes.
Brett M. Kavanaugh: Taylor says --
Zachary D. Tripp: And I think that's really the heart, the heart of our submission here, that this is just too far down in the weeds.
Brett M. Kavanaugh: Taylor said "substantially" corresponds, not "exactly" corresponds.
Zachary D. Tripp: Right. Right. And -- and, again, if Congress had an extremely specific, you know, and especially this -- this interpretation, an -- an idiosyncratic and arcane and honestly pretty novel understanding of remaining that reflects no dictionary definition of the term, that -- that Congress would have provided that --
Sonia Sotomayor: I'm sorry, there's --
Zachary D. Tripp: -- definition. It wouldn't have just said burglary.
Sonia Sotomayor: It can't be idiosyncratic because a number of states have accepted it. As of 1986, you had a number of states who read it that way.
Zachary D. Tripp: I -- I --
Sonia Sotomayor: You have the common law understanding that it was entry only and not remaining in. You have the use of "surreptitious" as a definition prior to this statute, which also has a -- a sense of, that you're surreptitious, that you're remaining in with the intent to do something because you're hiding from being found to do something. So I -- I -- I'm not sure how you call it idiosyncratic.
Zachary D. Tripp: So I -- I -- I -- I -- I think it is idiosyncratic. Today it's still very much the minority position in this timing rule. As of 1986 we think the number was zero, that exactly zero states had adopted the timing rule Petitioner is -- is advocating. And I -- I also just wanted to -- to sort of take a step back and emphasize that, you know, the reason Congress, as Taylor says, Congress was focused on modern law enforcement concerns, not "arcane distinctions" that have little relevance to modern law enforcement concerns. And it's harder to think of a better description of this rule. I mean, you imagine being at home woken at -- at night from the sound of footsteps downstairs. You come downstairs and there's an intruder in your house who's is stealing your television or, worse, is like intent on assaulting you. I just don't think anybody would care in that situation or -- or know whether the intruder developed that intent three seconds before or three seconds after breaking in. The timing just doesn't matter. What matters is there is an intruder in your house who's bent on stealing your television or -- or assaulting you. I think the same -- another very powerful illustration of this --
Sonia Sotomayor: Do you think that it's a different reaction if you hear someone downstairs and they are in your pantry and you come down and they are stuffing their face with food, do you think you're going to have the same reaction to that person than you had to the person walking away with your TV?
Zachary D. Tripp: I -- I -- I -- I think --
Sonia Sotomayor: Or somebody walking out of your house, you see they're empty-handed, except they have a coat on now. They're clearly homeless. They're disheveled. They're unclean. Do you think your reaction's going to be the same to the person stealing your TV?
Zachary D. Tripp: I -- I -- I think that your reaction to those different situations -- those different situations would be very different, but it would -- it doesn't depend on the timing rule. It depends on the underlying facts.
Neil Gorsuch: I -- I guess --
Zachary D. Tripp: And I think the best illustration of this --
Neil Gorsuch: I guess, I'm -- I'm sorry to interrupt, but -- again, but I -- I'm stuck on a little something differently. I would probably react badly to all of them myself. (Laughter.)
Neil Gorsuch: But I guess I'm wondering, though, those other crimes are bad, too. Nobody is here to defend entering without intent and then committing a crime with intent later. No -- nobody thinks that's a good thing. But the question is whether it was burglary. And burglary is a very specific crime. And at common law it did require intent --
Zachary D. Tripp: Right.
Neil Gorsuch: -- upon entry. So calling it some arcane thing that is nuanced to a point where nobody cares is like asking us to ignore a thousand years worth of law.
Zachary D. Tripp: So --
Neil Gorsuch: And -- and -- and -- and also possibly a majority of the jurisdictions in 1986. And so I -- I guess that just -- perhaps there's a better argument --
Zachary D. Tripp: So it's --
Neil Gorsuch: -- than that it's too arcane.
Zachary D. Tripp: Just -- just -- I want to be clear. We agree with the rule that the timing needs to be contemporaneous. You need to have the intent while you are remaining, right? We also know that the whole point of the "remaining" prong was to eliminate the common law requirement that there be an entry, right? That's the only thing it's doing in any of these statutes is eliminating that requirement. It was part and parcel of the states getting rid of the requirement that there be a break-in, that it be a dwelling, that it be at night, that it be with the intent to commit a felony. We also know that the states were not only focusing on the sort of surreptitious remaining type fact pattern because only a tiny number of the states actually required that. Most of them just said "remaining." And I think --
Brett M. Kavanaugh: The law -- the law -- to pick up on Justice Kagan's question from earlier, the law had sufficiently changed by 1986 that the author of the opinion in Taylor knew enough to put "remaining in."
Zachary D. Tripp: Yeah. And -- and it's undisputed that "remaining in" is -- is -- is part of what Congress was trying to reach. And I guess what I'm --
Elena Kagan: Right. But the question, Mr. Tripp, is how the intent requirement figures in that. There was no question that they -- that Taylor says and -- and that the "remaining in" was by then a known feature. But just as you said, the "remaining in" was really an attempt to close a loophole, if you will, in the entry and say, look, we have these cases that are coming up where the person is not entering unlawfully, the -- the person -- the person is only remaining unlawfully. And so it was an attempt to close that loophole. But then the question that I think Mr. Marwell is raising is whether the intent to close that loophole suggests that there was also a desire to really shift the historic common law understanding of when the intent needed to develop. And he's suggesting, no, it was really just an attempt to close the small loophole but you shouldn't read into that some much larger desire to -- to -- to shift the understanding of intent and when it arises.
Zachary D. Tripp: So a couple different responses to that. So, first of all, I think this is actually not a very big shift because this timing question doesn't come up very much. There's still 11 states that have had remaining-in burglary on the -- on the books for decades. The timing question is never -- they don't have any case law on this. And then as for what the states were doing, as I was saying, we know that they were adding the "remaining" prong to eliminate the requirement that there be an entry, and we know that they were doing more than just picking up the guy who was staying behind and hiding in a store after hours who could steal things inside because they -- they weren't requiring that it be surreptitious. So then to figure out what is it that they were trying to do, I think really in a natural way to understand that is to just read the text of their statutes. They say "remain." This is just what it means to remain in a place, that you remain as long as you stay. If you want to dig deeper and look at the case law in the time in 1986, the case law was unanimous on this timing question in favor of reading that to just mean what it says. And -- and so I think really -- and then again to come back, Taylor focus -- focuses on -- it says, look, what the states were trying to do here is focusing on modern law enforcement concerns, right? And the concern, of course, is that there's a trespasser in your house or some other building or other structure like that and that he's intent on committing a crime. And -- and again, I think it's really important that in many of these cases, just nobody would care when the intent was formed. The problem is that there's the -- the criminally-minded trespasser. A very powerful illustration of this is the domestic violence situation which we talk about in our brief, which would be -- which would be burglary under -- under Petitioner's rule, right? If an ex-boyfriend goes to visit the ex-girlfriend, she lets him in, and then they start to argue. She says, look, you need to get out of here. If at that moment he intends to assault her, that's burglary under -- under Petitioner's rule because he remains with intent. But if he decides to assault her three or four seconds later, it's not? And just -- you know, from the perspective of the victim who's being assaulted in her own home by an unwelcome visitor, just -- what does it matter?
Stephen G. Breyer: True, but we're -- we're trying to figure out something about the crime in general. In general, is it more likely to involve violence or not? So we have situation 1, where he intends to commit the crime inside the house either when he breaks in or when he first remains. Situation 2, he doesn't form the intent to commit a crime until after he first breaks in or first unlawfully remains. Okay? Those are the two situations. I would have always thought -- I guess this is only the 50th time I've asked this question, but I would have always thought, you know, you could look up the cases on it and get an idea, empirically. And -- and then we'd have at least something to go on, even if they were only appellate cases.
Zachary D. Tripp: Yeah.
Stephen G. Breyer: Has anyone ever done that?
Zachary D. Tripp: I think honestly the -- the cases that are cited in these briefs do that. And -- and they tell you, they -- they paint a pretty powerful picture. I urge you to read a lot of them. It's true some of them are minor.
Stephen G. Breyer: I can only read so many. (Laughter.)
Zachary D. Tripp: Some of these are very significant --
Stephen G. Breyer: Can I get help from my law clerks? (Laughter.)
Zachary D. Tripp: Many of these are -- yeah. Many of these are very significant crimes. I -- I want to be clear that the -- the situation I was talking about, of somebody coming in and then later seeing a woman inside he decides to assault, the domestic violence situation I was talking about, these are not hypotheticals. These are the facts of Gratton out of Alabama, of DeNoyer out of South Dakota, of Fontes out of Ohio. That's -- that's the seeing a woman after you break in. The domestic violence one, Braddy versus -- out of Florida. You know -- and a lot of these are very, very serious crimes. And I think they illustrate that what these people are engaged in is very erratic and impulsive decision-making, right, that they've -- they -- they already decided to break into somebody's house, and then they make an impulsive -- or -- or to be in a place where they're not supposed to be and not leave, and then they make a decision to -- to engage in some other further conduct, I think in many cases is really very, very serious. It's true there is some that are much more minor like -- like Gaines, the facts of that. But, again, what makes that sympathetic is not the timing; it's the -- it's a homeless guy who's cold, right? And you could have that same homeless guy, you know, in -- in Buffalo, it's -- it's snowing, it's very, very cold, he's walking down the street, he looks in a window and he sees a coat, and so he -- he breaks in, he grabs the coat, and he goes. That's burglary under their rule, even though it's just equally sympathetic. What -- what makes it sympathetic or not are the facts of the underlying case, not the timing rule that he's urging.
Elena Kagan: Mr. Tripp, I'm not sure whether this is here nor there, but, you know, some of the serious crimes that you just mentioned, and they are extremely serious, if you went out on the street and asked a hundred people whether those assault cases are burglary, you would get a hundred "no" answers. Does that matter?
Zachary D. Tripp: I -- I think the -- the place where that instinct is most powerful is for the domestic violence situation, where I agree that that is like -- feels intuitively different. And I think this was really what drove the drafters of the Model Penal Code and -- and says -- there's some language in LaFave to say you shouldn't have remaining-in burglary, and if you do at all, it should be surreptitious. And --- and I think really the short answer is that the states didn't buy it. The states just didn't do that. They didn't limit it to remain -- to surreptitious remaining. The majority of them adopted remaining statutes. Even more of them have it today. And so I -- I think, basically, the states have recognized that there's something really much more fundamental here. It -- it's not about the nature of the intrusion. It's about the fact that there is an unwelcome visitor, somebody in your home. It's about the safety and security of a person in their own home or in some other space like that, from an unwelcome visitor who's bent on committing some kind of crime. And I -- and I think the fact that a lot of these are actually -- I mean, a lot of these are really very, very serious crimes, when the --
Stephen G. Breyer: In --
Zachary D. Tripp: -- the timing question does come up.
Stephen G. Breyer: Some of them are and a certain amount of them aren't. Has the Department ever thought -- you don't have to answer this -- but has the Department ever thought of recommending to Congress a change so that instead of looking at the generic crime where the answer is going to be sometimes yes, sometimes no, there's violence, but saying look and see whether the person on the individual occasion submitted -- committed a violent act? Have you ever thought of that? And if they say no, we're not going to do that?
Zachary D. Tripp: I mean, I'm sure people have thought of it, but to my knowledge, the -- the Department hasn't proposed any affirmative legislation on this. I know there's legislation that's pending on the Hill about this, that -- that the Department is providing technical assistance on. But -- but, beyond that, I'm not sure I know.
Brett M. Kavanaugh: Can I --
Zachary D. Tripp: If I can --
Brett M. Kavanaugh: -- ask the same question that I asked the other side, which is in the universe of burglaries, do you have a sense of how many are remaining in?
Zachary D. Tripp: I -- my sense is that it's pretty rare, that -- that it's pretty few, that in the, like, overwhelming number of burglary cases, you're going to have evidence of an unlawful entry and then that's just how you prove it up and that becomes the whole case. And I guess actually this gets out to this idea that our reading of "remaining" makes that prong more important than the "entry" prong. And -- and I think really our response is that it doesn't matter, right, that if you look at the law of trespass, it has the same pairing of "to enter" or "remain." And I don't think anybody cares which -- whether one of those is more important than the other or whether many entry trespasses bleed into remaining trespasses. They -- they're covering the waterfront of a trespass, and I think it's the same here.
Brett M. Kavanaugh: And if you were to lose this case, potentially all burglaries from how many states would no longer be able to be counted as --
Zachary D. Tripp: Yeah, it -- it would be 18 states and counting. So there's 18 states with a population of 130 million today. There's another 11 that have still -- haven't addressed this issue. And assuming that the current trends continue, probably more of them will read "remain" to mean "remains."
Elena Kagan: May I ask you the --
Zachary D. Tripp: And then --
Elena Kagan: -- same question I asked Mr. Marwell, which -- how many of those states have other burglary statutes that you could capture, can I say real burglary in?
Zachary D. Tripp: I prefer not the real burglary, but, yeah. I think there is -- there is -- there is a mix. I think ten of these states have adopted this rule by statute, but I don't know how much the different ones are -- are used relative to each other. But you would still be tossing out an enormous number of burglary prosecutions, you know, including from -- from Michigan, Texas, some very big states. And then I think another critical point, again, is that -- is that Petitioner's given you no logical stopping point, right, that this is -- it -- it cannot end here. If you think that it gets at this level of specificity, then why not all the other disputes about, you know, what it constitutes to be unprivileged, what exactly an entry is, and on and on and on. And I think what it really gets to is that --
Neil Gorsuch: Right. If the intent to -- if the intent to enter isn't critical, how about the act of what's done once inside? If -- if the mens rea isn't -- if that's too minor to care about, and we're going to just turn every former common law larceny into a burglary, which is what you're asking us to do in some ways, because a lot of the other conduct would be larceny, it's not like it would be unpunished at common law, why should we care about the actus reas and so why does it have to be taking things to be burglary? Couldn't it maybe also conducting a fraud while they're inside? California defines burglary to be almost as expansive as that. So perhaps that's -- that's equally consistent with your argument logically.
Zachary D. Tripp: So it's -- it's equally consistent with Petitioner's as well because it covers any crime that's not covered. We -- we agree that there has to be mens rea. Right? You -- you have to -- to intend -- you have to know that you're unlawfully inside the place that you're on -- that you're trespassing. And we know -- and we agree that you need to have intent while you're doing that. The -- the only dispute here is do you need to have intent only at the initial second --
Neil Gorsuch: I understand.
Zachary D. Tripp: Of the -- right? That's just the timing.
Neil Gorsuch: But if that's too minor to care about, then why should we care about these other things, too, that were also part of common law burglary?
Zachary D. Tripp: I think part of the answer is that's -- that remains, first of all, the Taylor formulation and what the -- the overwhelming majority of states are doing. They are saying that you need to unlawfully enter or remain in a building or structure with intent to commit a crime. That's what these statutes say. I think if you flip through them you'll see that many of them are --
Neil Gorsuch: So it isn't that it's too minor. It comes back to counting again. And then we're just back down to 29 versus 23 and we have to decide.
Zachary D. Tripp: I -- I think it's not just about it being minor and it's not just about counting. It's that -- I think what the states have recognized is that the core of this offense are not these kind of questions from the common law about did you break and did you enter, it's is there a trespasser in your home who is intent on committing a crime? That -- if there is, he's a burglar. Right? I think that's -- that's really what the states are -- are boiling it down to. That's the --
Neil Gorsuch: Any crime?
Zachary D. Tripp: -- modern offense. Any crime. That's what Taylor says. He agrees with that. Petitioner would agree that if the person is breaking into a house, you know, at night with the intent to commit stock fraud on his phone, I mean, I don't know if that would ever happen, but, yeah, that's burglary under -- under either of the rules here. And I -- I guess also just to -- to try and take one step back in response to some of the -- the -- the questions, right, if you're going to have a categorical approach to this statute that doesn't look to the facts of the individual case, you -- you need to have a broad definition of the category. Right? Otherwise, if you have a very specific laundry list, a long list of things that every statute needs to match perfectly, all that you're going to do is be knocking them out one after another, after another, until there's really nothing left and -- and I think would really defeat the purpose of Congress in including burglary among an ACCA predicate. I guess maybe just one last point here. I mean, the -- the statute here, this is a home invasion statute. I think most people would think that this is the heart of modern burglary. And -- and I -- I -- I think if you told the drafters in Congress, you know, imagine a person who you think should fit within the ACCA, it would be somebody with a track record that looks an awful lot like Petitioner's. So if there's no further questions, we're asking the Court to affirm.
John G. Roberts, Jr.: Thank you, counsel. Mr. Marwell, four minutes remaining.
Jeremy C. Marwell: Thank you. On the bad cases that the government, the facts that the government alleges, there's no dispute that those are crimes. The question is: Are they burglary? They may be trespass. They may be assault. They may be punished separately. But Congress used the word "burglary." And I think the reason that we're here is that there is some incongruity between the government's account of generic burglary and these cases that just don't feel like burglary. And that's why the Fifth Circuit, the Seventh Circuit, have held that Taylor is not clear on its face, doesn't resolve the issue. I think it's worth reminding that less than a year before Taylor, the New York Court of Appeals interpreted that state's remaining-in statute the way we say. That statute we know from Colorado and other -- and other states was a model for other states' laws and I think it helps explain what the Court may have been getting at in Taylor. The government focuses heavily on trespass and the fact that "remaining" has a continuous sense in that law. I think that's the fundamental problem with their position is that they're equating trespass and burglary. And we need some line, we suggest it should be drawn from the common law and state practice, that -- that distinguishes those two crimes. On the concern about simplicity or a slippery slope, I would suggest -- I would submit that Taylor provides you an administrable and workable rule. Looking to what states did in 1986 is an objective foundation. It's a point in time. And there isn't actually that much dispute between the parties about what state law was. It's just a dispute about what inferences or what conclusions to draw. If you walk away from that approach, I think you're left with the difficult questions of what is and what isn't risky in -- in a particular consequence. And the -- the government, I think, has -- has not asked you to revisit Taylor in this case. As to whether this issue is a big deal, I think it is a big deal because the government can just charge entry or remaining and it essentially makes the long-standing traditional rule of intent at entry disappear in all but the very small number of cases that the government identifies, such as a fleeting entry or an interrupted entry. And I -- we don't see any evidence in Taylor that there was intent to make that big a change. If this does become a problem, obviously the Department is well positioned to ask Congress to fix it. And if there are no further questions, we would suggest that a call to simplicity doesn't justify overlooking hundreds of years under which the essence of burglary has been somebody who trespasses for the purpose of committing a crime.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Warren E. Burger: We’ll hear arguments next in number 70-2, United States against 12 Reels of Film. Mr. Solicitor General.
Erwin N. Griswold: Mr. Chief Justice and may it please this Court. This case and the following one are here on re-argument. Unfortunately, neither involves any factual question about obscenity. Each case involves a construction or application of the Constitution or of the statutes of the United States alone. This case is a customs forfeiture proceeding and brought under Section 1305 of Title 19 of the United States Code. As the Court will recall that is in form and in rem proceeding against certain articles which were found in the customs and it was begun by the filing of a complaint for forfeiture by the United States Attorney, that appears on pages 2 and 3 of the Appendix. The procedure was apparently somewhat informal or the Appendix is incomplete. No motion to dismiss appears in the appendix and as far as can be told from the appendix, the owner of the materials, never had a lawyer. He apparently dealt with someone in the United States Attorney’s office. The next thing we know is an order of dismissal which appears on page 5 of the appendix where Judge Ferguson said that the case depends upon Section 1305 with further appearing that a three-judge court in United States v. Thirty-seven Photographs, determine that Section 1305 is unconstitutional on its face and it further appearing that this Court ought to abide by that decision pending its responsible review in the United States Supreme Court it is ordered that the action is dismissed. Thus, the decision depends upon a determination that Section 1305 is unconstitutional on its face, a determination which this Court has subsequently rejected in this Court’s decision in Thirty-seven Photographs which reverse the District Court in California and is reported in 402 US. Up to that point, there are no facts. There never was a trial. There was, however, a motion by the United States Attorney to stay the order of dismissal which would have resulted in turning the items which are called the defendants over to the claimant. And there was in connection with that file an Affidavit by the claimant which appears on page 9. I can only surmise, but I find myself with a feeling that it was probably written by an Assistant United States Attorney in cooperation with the claimant because the claimant has not had counsel. And in the affidavit, the claimant says that none of the defendants were imported by me for any commercial purpose but were intended to be used and possessed by me personally and in the motion to stay the order of dismissal, the Assistant United States Attorney on page 7 of the records says, “The Court is further advised that the Plaintiff has no evidence with which to contradict Mr. Paladini’s affidavit and therefore does not contest the fact that this was a private importation” and that is the basis upon which the case is here. It is thus, purely a question of construing and applying the First Amendment with respect to articles which are considered to be obscene for the purpose of the case because the forfeiture was ordered dismissed, because the statute was held to be unconstitutional on its face that could have been only under an application of the First Amendment, and so we are confronted here with an almost pure question of the construction and application of the First Amendment. I find it very difficult to think of it in terms of construing the First Amendment because I can find nothing in the First Amendment that seems to deal with that. Congress shall make no law abridging the freedom of speech or of the press. Now, I think we can put the speech aside. No one is undertaking to speak. No one has spoken. No one is being told that he cannot speak anything he wants. With respect to the press, there is no prior restraint. No one is stopping the presses. It has never been supposed that the First Amendment prevents legal action with respect to the product of the press in cases where that is warranted.
Potter Stewart: Well, it's not your point is it that the First Amendment is wholly inapplicable to this case because these things were printed outside the United States?
Erwin N. Griswold: No, no, Mr. Justice. I think the --
Potter Stewart: No.
Erwin N. Griswold: -- the First Amendment is applicable with respect to any action by officers of the United States. The fact that they were printed abroad, we don’t even know that they were printed abroad. They may have been --
Potter Stewart: Well, presumably they were?
Erwin N. Griswold: -- re-imported.
William J. Brennan, Jr.: Mr. Solicitor General, you are not suggesting that all of these defendants so called are not forms of expression, are you?
Erwin N. Griswold: All of them are forms of --
William J. Brennan, Jr.: Expression, are they not? I see they are reels of film.
Erwin N. Griswold: They are reels of film and printed --
William J. Brennan, Jr.: Or perhaps it is a whole lot, much more than this I thought they were good many things, but they are forms of expression, aren’t they?
Erwin N. Griswold: They are forms of expression but no one is abridging the freedom of the press here. No one is seeking to prevent the printing of material. They are seeking to prevent the importation of material, but that is not preventing the printing of material. But let me move to the next aspect of the argument. Actually, I suppose this case turns entirely on the meaning and application of four decisions of this Court. There are of course, a good many others which are in the area, but Above the four are the Roth case decided in 1957, Stanley and Georgia decided in 1969, United States against Reidel decided in 1971, and United States against Thirty-seven Photographs also decided in 1971. The first of those is the Roth case and I believe there are only two members of the Court now sitting who participated in that case. The Roth case refers the opinion of Justice Brennan. It refers to the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations in the obscenity laws of all the 48 states, and then the twenty obscenity laws enacted by the Congress from 1842 to 1956 and continues. This is the same judgment expressed by this Court in Chaplinsky against New Hampshire where the Court said that there are certain well defined and narrowly limited classes of speech; the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene. It has been well observed that such utterances are no essential part of any exposition of ideas, that was why I was a little hesitant in answering your question. And are such slight social value as step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality and then follows the key sentence. We hold that obscenity is not within the area of constitutionally protected speech or press. Now, that sentence, which has, of course been quoted many times since, but if these materials which are conceded to be obscene on this record are not within the area of constitutionally protected freedom of speech and press, this is not a First Amendment case. Now that case was 15 years ago, a lot of waters gone over the dam. This is an extremely difficult area in which there have been sharp differences of opinion, but through it all, Roth and that passage have survived and I find it very difficult to see in 1972 if the Court’s position is that obscenity is not within the constitutionally protected area of freedom of speech and the press, that there is any First Amendment problem here.
William J. Brennan, Jr.: Well, what -- I just wonder do you say notwithstanding Stanley?
Erwin N. Griswold: Yes, Mr. Justice, because in Stanley --
William J. Brennan, Jr.: I know what Stanley said that this didn’t effect to us but – and it said that --
Erwin N. Griswold: Well, --
William J. Brennan, Jr.: That actually Roth suggested I suppose, did it not that whatever is obscenity, it's something that the Government has complete power to suppress, suppress absolute, but Stanley has sort of cut into that a bit, didn’t it?
Erwin N. Griswold: All that we on this side of the bark and do Mr. Justice is to try to --
William J. Brennan, Jr.: Well, I know Mr. Solicitor. I am just suggesting what Stanley stands for at least is that in the circumstances involved in Stanley, Government has no power to suppress something called obscenity?
Erwin N. Griswold: Mr. Justice, I would think that the way to combine Stanley with Roth would be to say that Stanley is --
William J. Brennan, Jr.: I didn’t join Stanley, as you know. I did not join Stanley.
Erwin N. Griswold: I understand that Mr. Justice and –-
Byron R. White: And I was still in Roth? [Laughter]
Erwin N. Griswold: I am well aware. I have counted very carefully connecting with this fate. The only way that I can combine, I did not say reconcile Roth and Stanley is to limit to its facts namely the privacy of the home, a fact which was repeatedly referred to in the opinion in Stanley that when a man is in his home he can have there things which are beyond the power of the State to seize or interfere with. I have some trouble finding --
Thurgood Marshall: (Voice Overlap) Stanley was a bachelor, there were nobody in the house, but him?
Erwin N. Griswold: Mr. Justice, I did not expect to accept this reconciliation of Stanley and Roth. I've my own private view.
Thurgood Marshall: (Inaudible)
Erwin N. Griswold: Yes and may I say so with respect on the Fourth Amendment. There is a great deal of talk about the First Amendment in Stanley. The dissenting opinions or concurring opinions rested it on the Fourth Amendment. I find it quite easy to handle the two cases on that basis. I find it very difficult to find consistency between Roth and the statement in Stanley opinion. Roth and the cases following that decision are not impaired by today’s holding. Now, they are certainly are impaired as to the privacy of the man’s home and if that sentence had said except with respect to the privacy of a man’s home, Roth and the cases following that decision are not impaired by today’s holding, I could follow it better. The statement however, made in the opinion of the Court was quite unqualified. And then we have year-and-a-half ago, United Stated against Reidel where five members of the Court concurred in a majority opinion. Mr. Justice Harlan filed a concurring opinion and three members of the Court dissented. But in Reidel, the majority and may I say with respect including Mr. Stewart joined in the statement. Roth has not been overruled. It remains the law in this Court and governs this case. And if the law is that obscenity and the materials in this case are for the purposes of this case obscene is not protected by the First Amendment that would seem to dispose of the case and it went on to say, but it neither overruled nor disturbed the holding in Roth. And then quoted the language from Roth which I have given and reversed the District Court in that case by saying that the District Court gave Stanley too wide a sweep. And finally, the Court said on page 356, “But Roth has squarely placed obscenity and this is a majority of the Court, Roth has squarely placed obscenity in its distribution outside the reach of the First Amendment and they remained there today. Stanley did not overrule Roth and we decline to do so now.” And then at the very close of the opinion it says that these matters remain within state power, Roth and like cases posed no obstacle to such developments. Now, Mr. Justice Harlan concurred and Justices Marshall, Black and Douglas dissented. Immediately following that decision, there was decided United States against Thirty-seven Photographs, where as you will recall there were two questions, one might be called the time question, the question of the speed with which the Government can operate in this and there was a clear majority on that issue and we are endeavoring to carry out that determination of the Court, but then the Court went on and -- to decide to further questions. One with respect to the fact that the District Court in Thirty-seven Photographs had ruled in favor of the defendant even though the importation there was for commercial purposes. On the ground that the statute was over broad because it was also applicable to a private importation. And if the statute was over broad then it was unconstitutional and then it fell as to commercial importation too. And a total of six members of the Court joined in saying that that application of the statute was wrong. That the statute was valid as applied to commercial importation. But only four members of the Court joined in a plurality opinion with respect to whether a private importation was covered by the statute. That opinion by Mr. Justice White is again in strong terms, reiterates Roth. Holds Roth fully applicable and then we come to Mr. Justice Stewart’s opinion which made up one of the six, along with Mr. Justice Harlan. Mr. Justice Stewart turning to the private aspect of the importation says, “But I would not decide, would not in this case decide even by way of dicta that the Government may lawfully seize literary material intended for the purely private use of the importer.” And then he goes to give his own private dictum as I read it, perhaps wrong, “that it would be invalid as applied to a private importer.” He concludes, “if the Government can constitutionally take the book away from him as he passes through Customs” then I do not understand the meaning of Stanley v. Georgia and I can only say Mr. Justice that I don't understand the meaning of Stanley v. Georgia particularly in the light of its treatment in the subsequent cases. And so we come to the question on which a majority of the Court has not yet spoken whether an importation for private purposes is in some way which I find hard to follow brought within the language of the First Amendment or is within the decision of the Court in Stanley against Georgia as that case has been explained in the case itself and in the two subsequent cases of Reidel and Thirty-seven Photographs. Now, surely there is nothing in the Constitution about a distinction between private and commercial with respect to the application of the First Amendment. Surely the First Amendment applies to commercial publication. After all our newspapers have always been commercial. Our television networks are one of the greatest commercial activities in the country where very large sums are made by use of public facilities resulting among other things in very high cost for election campaigns. I don’t disparage the slightest the business of the newspapers or of the television. I simply point out that a distinction between public and private with respect to the First Amendment is between commercial and private with respect to the First Amendment is one which finds no application or support in any other area and I find it very difficult to see why it should hear. Moreover, if as the Court has not only decided, but has reiterated in recent time, obscenity is not within the protection of the First Amendment. I cannot see how it makes any difference whether it is commercial or private. At least, as long as it not in the privacy of the home which is the area which was involved in Stanley. And any application of Stanley broader than that is certainly not a decision in that case, but is a dictum of some sort which has not met full support from the Court in subsequent decisions. Now, there are references in other cases to penumbras of the First Amendment. I recognize that the First Amendment ought not to be construed in strictly literal terms. I have even contended here that no law does not mean no law and that still seems to me to be in some applications a sound argument. Similarly, the First Amendment need not be construed literally in its broader application. But a penumbra I am told is an area of partial darkness between the light and total darkness. It is also a realm of great uncertainty where the conclusions, I would suggest with great respect, are not found in the Constitution, but are found in the minds of the person who is writing about the particular problem. I find it extremely difficult to see how it is appropriate to extend, I won’t say the Constitution, but to extend the application of the Constitution to a matter which for a century and three quarters has been regarded as within the complete control of Congress the -- under its power to regulate foreign commerce the importation of items into the United States. The mere fact that it is private does not seem to me to justify the conclusion that Congress cannot regulate the importation. That would be equally true of narcotics or explosives or other material which a person might want to bring in on his person, a diamond ring or something else that he had acquired abroad. He is subject not only to having to declare those and pay duty on them, but in certain cases to be searched and to have the property seized. The mere fact that it is private does not seem to me to support it. The fact that it is in print doesn’t seem to me to help any at least if there is any vitality to the repeatedly re-declared statement in Roth that obscenity is not within the protection of the First Amendment. That decision in Roth seems to me to be sound at the time. The Court has taken occasion in a number of decisions to reiterate its support for that decision in Roth and that seems to me to be sufficient to disclose of this case. Accordingly, we urge that the judgment below be reversed.
Potter Stewart: Has this statute got any relevant legislative history? It seems to be enacted in 1930. Is there any thing in the legislative history (Voice Overlap)?
Erwin N. Griswold: Mr. Justice, I cannot answer that. I think that though this statute was enacted in 1938 it had predecessors and that full legislative history would be long and complicated and I cannot give it to you.
Warren E. Burger: Senator Kuchel.
Thomas H. Kuchel: Mr. Chief Justice, may it please the Court. As the Solicitor General has indicated one Paladini, an American returned home from abroad with certain motion picture films and printed materials which were seized by custom’s officials after a search. A complaint for forfeiture was filed. The District Court found US Code 1305 (a) unconstitutional. In a motion for a stay in the District Court, the United States advised the Court and I quote, “Does not contest the fact that this was private importation.” Also as the Solicitor General has indicated, the obscenity of the seized articles is assumed for the purposes of this argument. It is our position that 19 U.S.C. 1305 (a), cannot be constitutionally applied to the facts in this case which we believe fall within the scope of Stanley v. Georgia. In Reidel, Mr. Justice White said for this Court, “The personal constitutional rights of those like Stanley to possess and read obscenity in their homes, and their freedom of mind and thought do not depend on whether the materials are obscene or whether obscenity is constitutionally protected. Their rights to have and to view that material in private are independently saved by the Constitution. If a man, as Reidel indicated, has a constitutional freedom of mind and of thought, if he has a constitutional right to possess and to read in private any material, however shabby or outrageous or offensive, it might be to the rest of us, then the content of that material is completely irrelevant to his exercise of those rights. And well it should be for any theory by which our Government would exercise any control over a man’s mind or his thoughts over what in his own privacy he chooses to read or to view is surely repugnant to our concept of constitutional freedom of the individual under this system.” Stanley holds and I quote it, “The First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.” Roth and the cases following that decision, said the Court in Stanley, are not impaired by today’s holding. As we have said, the states retain broad power to regulate obscenity. That power simply does not extend to mere possession by the individual in the privacy of his own home. We think, said the Court in Stanley, “that mere categorization of these films as obscene is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments” and so one more quote from that decision, “Whatever the power of the State to control public dissemination.” That is the word public not commercial; public dissemination of ideas inimical to public morality. It cannot constitutionally premise legislation on the desirability of the controlling a person’s private thoughts and that sound doctrine it seems to me ought to prevent the state from interfering with the private thoughts of a person wherever he may be. The right to be let alone, the right to be free from unwanted governmental intrusions into ones privacy except in very limited circumstances, are rights which this Court has said protects the individual in whatever he intends to preserve as private away from the scrutiny of the public. In Capps versus United States, the Court said the Fourth Amendment protects people not places. What a person knowingly exposes to the public even in his own home or office is not a subject to Fourth Amendment protection. But what he seeks to preserve is private, even in an area accessible to the public may be constitutionally protected. And in Hoffa versus the United States, the Court said “What the Fourth Amendment protects is a security a man relies upon when he places himself or his property within a constitutionally protected area be it at his home or his office, his hotel room or is automobile.” There, said the Court, “he is protected from unwarranted Government intrusion” and when he puts something in his filing cabinet and in his desk door or in his pocket, he has the right to know what would be secure from an unreasonable search or an unreasonable seizure. The home just as any other place maybe searched on the basis of a warrant issued on probable cause, defining with particularity the subject matter of the search. The locus of the articles in Stanley’s home clearly is not what protected Stanley. What protected Stanley was that the articles were motion picture films and printed material, articles with First Amendment implications. Any other contraband which might have been found in Stanley’s home in the course of a lawful search would not have been so protected. For example, during the search of Stanley’s home if officers discovered in plain sight an illegal machine gun or an unregistered whiskey still, they would have been authorized to seize and to prosecute Stanley for illegal possession of it. It is therefore clear I submit that the result in Stanley is deeply rooted in the First Amendment. The right to private possession is in no sense inconsistent with the Government’s right of Custom’s inspection. In the sense, Customs officials are clothed with a blanket statutory search warrant authority to determine what articles are being imported, whether they may be lawfully imported, and whether and to what extent they might be dutiable. And in accordance with Thirty-seven since obscene materials intended for commercial use maybe excluded, inquiry can be made as to the intention of an importer of allegedly obscene materials and I want to observe that Thirty-seven was not the case of private importation. The fact that Customs officers may not seize material intended for private use, should have no adverse effect at all on law enforcement responsibilities of the Customs people. In its brief, the United States argues and I quote from page 10 of that brief, “That to subject homeowners to searches for possession of obscene materials would induce self censorship reaching to protected speech and would generate a chilling effect upon the exercise of the First Amendment right to peruse materials that are not obscene.” That apparently is sound argument and we submit that it applies with equal impact on the American traveler, who is returning from abroad. He has of course, the unquestioned right to import non-obscene material, but would there not be an equally chilling effect upon him as he ponders the purchase, for example of a book which he believes to be non obscene, but still is consumed with a fear that some Customs people may disagree with him. That same chilling effect could easily deter an American down the street in this country from ordering even a possible press from a foreign source.
William H. Rehnquist: Senator Kuchel, I suppose one could carry that one step further and say that the commercial importer might engage in self-censorship, if he has to draw the line somewhere between obscene publications and non-obscene and they would have a chilling effect on him?
Thomas H. Kuchel: What I am trying to do is to speak for the facts in this case and so far as a commercial importer is concerned I rather doubt that the fear would run against the non-obscenity possibility, but it would be the other way around. He want to import those that clearly be obscene, if he is interested in commercial distribution. The Solicitor General in his argument referred to hand grenades and narcotics privately sought to be brought into this country except for the law. I know of no basis on which you can equate hand grenades or narcotics with rights guaranteed to the American people under the First Amendment and I would say that that is not an argument against the findings of the District Court. Mr. Chief Justice, may it please the Court, what kind of a constitutional right is the right to read or to view undisturbed by the state if it may only be asserted behind the closed doors of ones home? Should not that right accompany a person wherever he goes, to his office or on returning from a trip abroad as well as in his home? And why should his constitutional rights under the First Amendment or the Fourth Amendment or the Fourteenth Amendment or any part of the Bill of Rights, be abridged or shriveled by equating him with a public distributor of obscenity.
Warren E. Burger: Do you think that means that he has the right to go somewhere and buy it if it's admittedly forbidden hardcore pornography? Or just are you limiting it to the right to carry it in his briefcase or his pocket, have it in his office or on the train or in an airplane?
Thomas H. Kuchel: Mr. Chief Justice, this Court in Stanley recognized a right to receive information. You did not comment on whether the reception should be free of charge or for money, but if it is the intent as I would urge it is, which makes a difference with respect to the intent for private use or for public use then I would take the position that an individual American citizen desiring to obtain any printed information for private use would have the right to obtain it in a lawful manner.
Warren E. Burger: Does that include the right of someone else vicariously through the individual's First Amendment right to sell it to him?
Thomas H. Kuchel: I cannot stand before this Court and say no. I would say that there is a right on the part of the State to prohibit the dissemination of material which it would find was obscene.
Warren E. Burger: Would you --
William J. Brennan, Jr.: So, that means the seller could go to prison, but not the buyer?
Thomas H. Kuchel: I regret and I find myself in a position where I am seeking to apply the rights to receive as Stanley has laid down. But I offer no argument against a law in which a seller would be guilty of a breach of statute.
William J. Brennan, Jr.: Do you see anything Senator, are you familiar with our decision last term in Eisenstadt, the one that involved the sale of the contraceptive?
Thomas H. Kuchel: I am acquainted with the Griswold versus --
William J. Brennan, Jr.: Well, that's alright but --
Thomas H. Kuchel: The case now pending squarely presents this question, may the United States constitutionally seize motion picture films and printed material intended for the private use of the importer? The answer is in the negative and the question really answers itself. If intended for private use then the character or subject matter of the films and printed material can be of no concern to the Government. Fundamentally, therefore and I repeat it is the intent, which we submit should be controlling. It may well be that the whole bundle of a person’s private constitutional right to possess such literary material as he desires, to think as he wishes and to view or read what he pleases, must give way to the authority of a State to prohibit or control at the moment when he does not seek to exercise those private rights, but to the contrary intends to sell or otherwise distribute to the public any of the material he has in his possession. But so long as what material he has, he intends to keep to himself in a personal or private way, he should be protected against the State either because of Stanley or because of what Stanley foreshadows not alone in his home, but any where else where he keeps such material in private.
Warren E. Burger: Thank you Senator. Mr. Solicitor General, you have four minutes left.
Erwin N. Griswold: I would like to make only two points in rebuttal. The argument that there is a right to receive and that this supports the distribution of material was in essence the heard argument in the Reidel case and was the argument which was rejected by a majority of the Court there.
Warren E. Burger: Well, if I understood that Senator Kuchel correctly, he would concede that the very material here sought to be imported by this man, could -- the State of California or any State be prohibited from sale in public and he is tracing it just from the chain of getting it outside the country and getting it into his own home and his own office or his own pocket?
Erwin N. Griswold: I was undertaking simply to support Senator Kuchel’s concession on that to refer specifically to the Reidel case which decided that I believe and also to the decision of the Court per curium in Gable against Jenkins 397 US 592 decided shortly after the Stanley case in which the power of the State of Georgia to regulate the dissemination of such material was expressly confirmed. The other point that I would like to make is that I think that for practical purposes the distinction between private and commercial in this area is illusory. It is appealing in a sense, of course, in the sense that led to Stanley and Georgia, the freedom of a man’s mind to think what he wants to think. But there is no practical way to deal with a decision which says that if the matter is private it can be imported, but if it is commercial it can’t be imported. The only thing that you could go by would be the man’s own statement plus perhaps the quantities of materials imported and here there was a very substantial quantity. It is one thing to say it is in his luggage, it is in his pocket, it is in his home but how are you going to keep them there?
Warren E. Burger: Isn’t that’s stipulated, conceded out of this case by the concession if it is for private purposes?
Erwin N. Griswold: It is stipulated that he claims that they are for private purposes and that the government has no evidence to the contrary. How would the Government ever have any evidence to the contrary at point in importation?
Warren E. Burger: Well, let's say Mr. Solicitor General that the man had three convictions previously for selling this adult material?
Erwin N. Griswold: Yes, Mr. Chief Justice, I can accept and recognize that there would be certain cases when it would be possible to do that.
Warren E. Burger: There's nothing to prevent the Government from acquiring him to sign a sworn statement that this will not be sold, is there?
Erwin N. Griswold: And then what?
Warren E. Burger: And then if he violates it, make a crime out of that?
Erwin N. Griswold: It would not be at least any crime under any existing law if he then sold it. Moreover by the time he has sold it, it is in the extreme of commerce and the purpose of Congress in trying to keep such materials out has been entirely frustrated. I simply repeat that it is not practical. A decision that things can be imported by a person, does it have to be in his luggage accompanying him or can he ship it in as he comes in or can he ship it in while he is abroad in order to have it home when he gets there? How would any one, how would custom's officers, officers of the Government endeavoring honestly to comply with the decisions of the Court deal with it is a practical matter. I submit that to decide that it can be imported for private purposes is in effect to overrule the consequences of Thirty-seven Photographs which the Court decided last term.
Warren E. Burger: Thank you, gentleman. The case is submitted.