The transcript is here.
1. What keeps an indivisible statute from becoming a divisible statute? (And vice versa?)
My point is — doesn’t the use of a modified categorical imperative always become a lively, almost X-factor when being used in relation to a state statute?
And I think Breyer agrees with me when he says —
A State supreme court that says the word ‘weapon’ in the statute means knife, ax, or gun. Now, are those three ways of committing a crime? Or are they three crimes, each with a separate element? That is — we’d need not only St. Thomas Aquinas, but I mean, we’d need those angels dancing on the head of a pin.
Scalia’s and Horwich’s comments later in the proceedings seem to match my concern with the MCA, too. (See page 50.)
2. How was everyone’s New Year?
3. I kind of like how Breyer doesn’t really want to be bothered with the case — that — metaphysics aside — the case at hand really doesn’t warrant SCOTUS eyeballs, and that the numbers involved in the case — 500 relevant burglaries in California — makes it a state-oriented, burglary statute.
4. Apprendi really wasn’t written with immigration status in mind, was it?
5. But then that means that the argument being made here — that a divisible statute constitutes a violation of Apprendi (and that since you’re taking a divisible statute to someone’s immigration status, it has to go back to a jury) — doesn’t quite fit. (The line “Other than the fact of a prior conviction” is the big torpedo to the argument here, since the crime the man-in-question was convicted of affects his immigration status.)
6. Mr. Horwich seems to be more interested in having a conversation with the Justices than framing an argument.
7. A nice exchange —
Scalia: Qui tacet consentire videtur. Why don’t you quote the maxim?
Horwich: Because your Latin is better than mine.