Supreme Court Case on Conversion Therapy Ban

Speaker 1 (00:00):

539 Chiles versus Salazar. Mr. Campbell.

Mr. Campbell (00:06):

Thank you Mr. Chief Justice. And may it please the court. Colorado forbids counselors like Kaley Chiles from helping minors pursue state disfavored goals on issues of gender and sexuality. This law prophylactically bans voluntary conversations censoring widely held views on debated moral, religious and scientific questions. Aside from this law and recent ones like it, Colorado hasn't identified any similar viewpoint-based bans on counseling. These laws are historic outliers.

(00:43)
In NIFLA, this court protected professional speech highlighting the dangers of censoring private conversations between professionals and their clients. And this court rejected by name two lower court decisions upholding laws like Colorado's. But the Tenth Circuit gutted NIFLA's speech protection. Colorado insists that its law is subject only to rational basis review. Yet that would allow states to silence all kinds of speech in the counseling room such as disfavored views on divorce or abortion.

(01:17)
If heightened scrutiny doesn't apply, states can transform counselors into mouthpieces for the government. Here, Colorado can't satisfy any level of heightened scrutiny. It didn't seriously consider any less restrictive alternatives. And Colorado can't prove harm because it hasn't cited a study focusing on what's at issue here, voluntary speech between a licensed professional and a minor. Nor can Colorado deny that many people have experienced life-changing benefits from the kind of counseling that Ms. Chiles wants to provide. The First Amendment doesn't permit Colorado's censorship. I welcome the court's questions.

Speaker 2 (02:00):

In its introduction of its brief, Colorado says that the only thing that the law prohibits therapists from doing is performing a treatment that seeks to predetermine the outcome of changing a minor's sexual orientation or gender identity because the treatment is unsafe and ineffective. One, is this what Colorado argued below? And two is that your reading of the Colorado statute?

Mr. Campbell (02:29):

Colorado took a different position below in its motion to dismiss specifically footnote three and on page 10 of its opposition to the motion for preliminary injunction. It recognized that efforts to change unwanted same sex behavior or to reduce unwanted same sex attraction would indeed violate the law and that's contrary to the position it's taking now. I do think if we look at the plain language of the statute, we will find that what Ms. Chiles alleges in this case falls squarely within it.

(02:58)
The statute says that there can be no efforts to change sexual orientation or gender identity, including efforts to change behavior, gender expression or attraction. On page 207 of the petition appendix, Ms. Chiles alleges in her verified complaint that sometimes she helps clients who want to reduce unwanted same-sex attraction change, unwanted same-sex behavior and to resolve dysphoria that they're experiencing with their bodies.

Justice Sotomayor (03:24):

Counsel-

Mr. Campbell (03:25):

All of that-

Justice Sotomayor (03:26):

… you are right, that fits the definition of the law, but we have been very clear in Susan B. Anthony, that there has to be a sufficiently eminent and credible threat of prosecution. We've said merely having a law on the books is not enough. A chilling effect doesn't exist. This is an unusual case because we have basically six years of no enforcement of this law, three before this lawsuit, three since, and we have the entity charged with administering the law saying we're not going to apply it to your kind of therapy. So how does that fit into being an eminent threat of prosecution? Yes, you have an argument. They've disavowed it. How does that give you standing?

Mr. Campbell (04:27):

I don't believe that the state has disavowed enforcement. The state is relying on a misreading of the allegations in this case to say that there's no standing, but they have not disavowed enforcement. If Colorado truly believed that it wouldn't enforce the law and that Ms. Chiles wasn't-

Justice Sotomayor (04:43):

So tell me, what kind of disavowal you would need to find no standing? Would it be sufficient to say that consent, which is what your complaint claim, that your therapy is consensual talk therapy where you would seek to change the behavior of a child only if that's what they want, correct? Am I articulating it correctly?

Mr. Campbell (05:13):

That is certainly an aspect of what Ms. Chiles [inaudible 00:05:14]-

Justice Sotomayor (05:13):

No. I don't want an aspect. Define your talk therapy and then when they get up they can tell us whether they're disavowing any enforcement of that kind of talk therapy.

Mr. Campbell (05:26):

I would go back to what I referenced before, which is petition appendix page 207.

Justice Sotomayor (05:30):

Counselor, please answer my question.

Mr. Campbell (05:32):

I am trying to answer your question.

Justice Sotomayor (05:34):

What is your talk therapy that you want them to say they will not enforce it against?

Mr. Campbell (05:41):

Ms. Chiles helps clients when their goals are to resolve gender dysphoria by getting comfortable with their body and realigning their identity with their sex. She also helps them if they're experiencing unwanted same-sex attraction, if that's their goal to reduce it and she helps them deal with issues of unwanted same-sex behavior. That's the kind of counseling that we've alleged in the complaint. And here-

Justice Sotomayor (06:05):

Would any of that include what's talked about as aversion therapy? Which is encouraging them to vomit, encouraging them to go into electric shock treatment, encouraging… The typical aversion type therapy?

Mr. Campbell (06:24):

No, Ms. Chiles does not do any of that. All she does is speech in her counseling.

Justice Sotomayor (06:29):

And so what behavior does that include? Does that data include other people of the opposite sex?

Mr. Campbell (06:38):

No, she does not… That's not the kind of counseling she engages in. She engages in a discussion where her and the clients explore the concepts of identity, behavior-

Justice Sotomayor (06:49):

So go back to my last part of my question. If they disavow enforcement of that kind of talk therapy, do you have standing in this case?

Mr. Campbell (07:00):

We still have standing in this case. Over the last few weeks, there have been anonymous complaints filed against my client and those complaints are now being investigated by the state of Colorado for allegations that she's violating the very law that we're challenging. So we had a credible threat of enforcement before because there's no disavowal. Anyone can file a complaint at any time, which this court recognized bolsters a credible threat of enforcement and SBA list. But now that the state is actively investigating our client for supposedly violating this law-

Justice Sotomayor (07:32):

Okay, we're in a vicious cycle because if they get up here and say they're disavowing, then they won't be investigating.

Mr. Campbell (07:40):

But regardless if they disavow, it's only based on not only a misreading of the statute but also a misreading of the allegations in the complaint. As we pointed out in our reply brief, there are often uses of portions of quotes and the state of Colorado is ignoring the rest of the sentences in the allegations. Once those are read, just as the lower courts found, there is standing in this case.

Speaker 1 (08:06):

Counsel, how does your position change if in addition to the counseling there is more… I'll call medical treatment, whether it's medications, shots, whatever. Does that alter your position?

Mr. Campbell (08:20):

It certainly does alter our position. So as this court talked about in NIFLA when speech is incidental to regulated conduct, then that changes the analysis. And so if we were in the medical context and there was something like administering drugs, performing procedures, conducting examinations, that would take it outside of the arguments we're making.

Justice Kagan (08:42):

How about if it's just both? In other words, the speech isn't incidental to giving somebody a prescription for medicine, it's speech and it's giving somebody a prescription for medicine.

Mr. Campbell (08:57):

It would depend on how closely connected they are. So if the speech is describing how to take the medication, then that would be incidental.

Justice Kagan (09:04):

Right. But if the speech is the speech that your client engages in and in addition she engages in something that's non-speech, would we look at it separately or would we look at it as a package?

Mr. Campbell (09:19):

If they're sufficiently disconnected, I think you would look at them separately. And my client doesn't have the authority to prescribe drugs because she's not a psychiatrist. And the state of Colorado recognizes that there's a very big difference because it treats psychiatrists under section 240 of the code and it treats counselors under 245 and that's a recognition that it's just different regulation when medicine is at issue. In this case, Colorado is violating the promise that this court laid out in NIFLA, which is that states should not manipulate private conversations between licensed professionals and clients. Beyond that-

Justice Barrett (09:58):

How would this apply to a malpractice suit? Let's say that we think that this is content discrimination and it triggers scrutiny. Would your client then be subject to a malpractice suit?

Mr. Campbell (10:09):

She would be subject to a malpractice suit, but she would have the protection of the rigorous elements of malpractice. She would be able to show that she's not violating the standard of care, that she would be able to establish what the standard of care is. She would be able to show there's no harm and there's no causation.

Justice Barrett (10:24):

Well, I assume there would be a battle about the standard of care with competing experts, competing medical associations. Colorado's pointed to some professional associations in this case. Would the First Amendment have anything to say about that? Would it be strict scrutiny? It's the elements of a tort. It's a different thing. We didn't get to this question [inaudible 00:10:45].

Mr. Campbell (10:46):

As a general matter, the elements of a malpractice suit are sufficient to protect freedom of speech. Now I'm not willing to foreclose the fact that there might not be an argument someone might make in a particular malpractice case, but for our purposes, the elements of malpractice are generally sufficient to protect free speech. And in this case, the court doesn't need to resolve whether there might be additional protection because the way that Colorado is using malpractice is as an analog to what it's doing here. But it's nothing like the law that was shown.

Justice Barrett (11:17):

Well, I wasn't actually asking about the analog argument. I was just asking it independently.

Justice Kagan (11:22):

Can I just ask [inaudible 00:11:23] say on page 18 of your reply brief that in fact a malpractice suit could go forward and completely separate from the first amendment that what you need to prove a malpractice suit provides sufficient protection? Is that a right reading of what you said?

Mr. Campbell (11:42):

It is a right reading. Although we said that those elements are generally sufficient, so I don't want to foreclose that in a particular case there might be an argument, but generally speaking, a malpractice action subject to the rigorous elements would be sufficient to protect free speech.

Justice Jackson (11:57):

Can I get you to address whether or not the provision of therapy and the kind of therapy that your client practices is a medical treatment? I understood the basis of the Tenth Circuit's view to be that she's a licensed professional who is providing medical treatment, but your answers to the Chief Justice and Justice Kagan suggested that you're putting the practice of medicine on one side and her therapy on another. So I'm just unclear as to whether or not you're categorizing her therapy as a medical treatment.

Mr. Campbell (12:31):

I don't believe that we are categorizing it that way, but I don't think it matters because the First Amendment depends on the difference between speech and conduct, not on the difference between treatment and non-treatment. So in my response to the Justice-

Justice Jackson (12:43):

But I guess the argument that the 10th Circuit seemed to find persuasive was that if you are in the world of medical treatment, you are regulating conduct, that the medical treatment itself is an activity that is being licensed and that is being performed and that it really isn't speech, that the speech is the tool that is being used. Just like in other medical treatments, you have scalpels, you have tools that medical professionals use to accomplish certain goals and to provide treatment. And so in that sense, I think their argument was that speech is incidental to the provision of this medical treatment. So I guess we need to understand whether her therapy qualifies as medical treatment.

Mr. Campbell (13:30):

The question is whether her speech is incidental to conduct. That's what the court said in NIFLA. It said that if there's professional conduct, then speech that's incidental to that could be regulated.

Justice Jackson (13:40):

So treatment is not conduct, in your view?

Mr. Campbell (13:43):

If the treatment consists only of speech, then it doesn't trigger the speech incidental to conduct doctrine. And here we're just in First Amendment land where there is full robust protection. That's why I answered the Chief Justice's questions differently and acknowledged that if there was conduct in the practice of medicine going on, it changes the outcome.

Justice Jackson (14:03):

I guess it seems very odd that you could have two scenarios where you have two licensed professionals both attempting to provide treatment to an individual, say for the same issue, that the person says, "I'd like to live consistently with my biological sex. I feel that I am not doing that. I'd like your help." Medical Professional A treats that, quote unquote, "condition" with medication. Medical Professional B treats that condition with talk therapy. And I guess under your theory, those two scenarios are sufficiently different from a constitutional perspective that one could be allowed and the other not.

Mr. Campbell (14:48):

I think that's potentially correct because the First Amendment would apply to the speech and the therapy-

Justice Jackson (14:52):

Just because words are being used to accomplish the therapy in one scenario and not the other?

Mr. Campbell (14:59):

No, because only words are being used in the one scenario. Again, if there is a combination of words and conduct, I think that takes us into a different realm. But one of the things that's so problematic about Colorado's law is that it undermines the well-being of kids that are struggling with gender dysphoria. And so Colorado accepts that up to 90% of kids who struggle with that before puberty will work their way through it and realign their identity with their sex. But this law says that if any of those children go to a licensed professional and say, "I would like help realigning my identity with my sex," that licensed professional has to decline to help them. On the other hand-

Justice Kagan (15:42):

Does the analysis apply if the law is not this law? I think Colorado has something like the law I'm going to describe, but I'm not trying to describe Colorado's law, just take it as my hypothetical. If instead of this law, which really focuses on the kinds of treatment it is and the kinds of goals everybody has, it just says you're subject to penalties if you do any medical treatment, and that includes talk therapy, that deviates from the standard of care. And then it goes on to say something about how we find the standard of care. And suppose that sort of law was applied to your client. Is it the same analysis or a different one?

Mr. Campbell (16:28):

I think it's a similar analysis. So if a law like that were applied against my client and all she did was speak, then I believe that the strict scrutiny analysis would apply and the government would have to satisfy it. But the underlying analysis would change somewhat too because my client under those circumstances would be able to establish that the kind of counseling she provides is consistent with the standard of care versus under the current law, she's not able to make that showing.

Justice Kagan (16:58):

Right. So she is able to make that showing under my hypothetical law. But you're saying still that she would have a kind of separate argument that there needed to be strict scrutiny applied.

Mr. Campbell (17:11):

She would. She would be able to argue that and that would require the other side to show that what she's doing is causing harm. Because that ties into what this court's recognized in cases like Brown under strict scrutiny.

Speaker 1 (17:25):

Thank you Counsel. Justice Thomas. Justice Alito. Justice Sotomayor.

Justice Sotomayor (17:31):

Counselor, in your introduction you appeared to be applying strict scrutiny. One of the factors you said is the state has not pointed to a study that shows that talk therapy is harmful. Don't believe strict scrutiny always requires a study. Look, I'll give you a hypothetical. A state tells dieticians, "Don't encourage anorexic patients to engage in more restricted eating." All right? I don't think the state has to provide a study to show that that advice is not sound. Do you agree?

Mr. Campbell (18:16):

Justice Sotomayor, I think that might be true, but that's because that kind of hypothetical is very different than what we have here.

Justice Sotomayor (18:23):

So explain the difference.

Mr. Campbell (18:25):

In that hypothetical, the counselor or dietician is telling the client to do something that directly harms their body. In this case, Ms. Chiles is trying to help gender dysphoric kids avoid-

Justice Sotomayor (18:39):

That begs the question because there are studies that say that this advice does harm the people emotionally and physically. But putting that aside, you agree then that you don't always need a study? An absolute statement like that misstates the law?

Mr. Campbell (19:00):

No. What I agree is that if what the state is getting at is a statement by a professional that's telling someone to harm their body, that that's a different category. But if we're in a situation like this where there is debated science where the counselor is trying to help the child achieve their goals, then absolutely the standard this court set in Brown would apply, which requires a showing of causation.

Justice Sotomayor (19:25):

So there's only one circuit that has applied strict scrutiny to this kind of talk therapy. It's the Eleventh. The others, the Ninth and the Third have not. You seem to be encouraging us to apply strict scrutiny here. And the question I have, we're not a court of first review on this issue. Why don't we send it back? I'm assuming that the Third and the Ninth didn't apply strict scrutiny because they thought they'd have a problem with applying it to this law. Why should we be breaking our normal pattern in this case?

Mr. Campbell (20:02):

Because there is ongoing harm every day. Ms. Chiles is being silenced and the kids and families who want her help are unable to access it. It's very similar to what this court did last term in the Mahmoud case where the two lower courts had decided the case on rational basis review. And when this court decided that strict scrutiny was the proper-

Justice Sotomayor (20:22):

Remember I dissented.

Mr. Campbell (20:23):

I do remember that, Justice Sotomayor.

Speaker 1 (20:27):

Justice Kagan.

Justice Kagan (20:30):

Do you think if there were the exact opposite kind of law? So this is a therapist that consistent with the child's goals is trying to get the child to accept a gay identity or a trans identity. So it's exactly the same statute, but it's just flipped around? Same argument?

Mr. Campbell (20:53):

Strict scrutiny would apply to that unless there was conduct involved. If there was conduct, then that conduct was unlawful, then the speech integral to unlawful conduct doctrine would apply. But if it's only speech, then yes.

Justice Kagan (21:06):

I'm assuming that your caveat, "unless there was conduct involved," applies to your case as well, right? That that applies symmetrically to both unless there was conduct involved that was of that kind?

Mr. Campbell (21:17):

That's correct.

Justice Kagan (21:17):

Okay. So symmetrical.

Mr. Campbell (21:21):

Correct.

Justice Kagan (21:21):

Okay. You argue in your briefs that this law has viewpoint bias in it. And suppose that that was accepted. Do you think that we should stop there? Is there any reason at that point to go on to say how in this particular context of medical treatment we would treat a content-based law that is not viewpoint-based?

Mr. Campbell (21:53):

I don't think the court needs to address that if it finds that this is viewpoint-based discrimination. It reminds me of the distinction between this court's decision in Brunetti and then in Vidal. In Brunetti, there was viewpoint discrimination and then when just content discrimination was at issue, the court treated it differently.

Justice Kagan (22:13):

Thank you.

Speaker 1 (22:13):

Justice Gorsuch.

Justice Gorsuch (22:17):

Just quickly back to the late-breaking standing argument, which is in, I think, footnote 18 on page 23 of Colorado's brief and what your client intends to do, as I read the verified complaint, she would consistent with the patient's wishes, explore changes to not just attraction behaviors and expressions, but also identity. Is that correct?

Mr. Campbell (22:47):

That's correct.

Justice Gorsuch (22:48):

Okay. So even under Colorado's new reading of the statute, which is only about identity and orientation and not about those other things, even though the statute includes them, even under Colorado's understanding, your client would still wish to counsel people in a way that contravenes Colorado's present understanding of its statute?

Mr. Campbell (23:07):

That's correct.

Speaker 1 (23:08):

Thank you. Justice Kavanaugh. Justice Barrett. Justice Jackson.

Justice Jackson (23:14):

So as I understand it, the First Amendment protects the communication of messages, expression, et cetera. Am I right about that? You're communicating and that's what the First Amendment is about.

Mr. Campbell (23:26):

Correct.

Justice Jackson (23:27):

So I guess I'm still just struggling with whether a therapist who is acting in their professional capacity to help someone achieve their goals is really expressing the kind of message or expressing a message for First Amendment purposes. I understand if Ms. Chiles here were writing an article about conversion therapy or giving a speech about it, but it's just a little puzzling to me that she would stand in a different position than a medical professional who has exactly the same goals, exactly the same interests, and would just be prescribing medication for that rather than her talking with the client.

Mr. Campbell (24:14):

I don't think that they would have exactly the same goals.

Justice Jackson (24:17):

Why not?

Mr. Campbell (24:17):

Because this involves a conversation.

Justice Jackson (24:20):

Yes.

Mr. Campbell (24:20):

There is a back and forth… So this court has recognized many times in cases like McCullen that a one-on-one conversation is a form of speech. And that's exactly what's going on with Ms. Chiles and her clients. So when she engages in those conversations, she's encouraging them to achieve their goals. She's discussing concepts of identity and behavior and attractions and how they fit together. This is an ongoing active dialogue where she's helping them to explore their goals and that absolutely has to be protected by the First Amendment.

Justice Jackson (24:53):

And you're saying the similar kind of exchange doesn't occur with a provision of other medical services that don't involve talking directly?

Mr. Campbell (25:01):

It certainly might occur in other instances, but oftentimes there's conduct connected to it. That's what's different about the medical context.

Justice Jackson (25:12):

And I'm sorry, can I just ask you again what Justice Sotomayor asked, which is why wouldn't we send this back if you're right about strict scrutiny and let the lower court apply that [inaudible 00:25:25]?

Mr. Campbell (25:24):

Because there is irreparable harm going on right now. Ms. Chiles is being silenced. The kids and the families who want this kind of help that she'll offer are being left without any support.

Justice Jackson (25:35):

No, I understand. But strict scrutiny is not necessarily fatal. We have cases in which strict scrutiny was applied and it was surmounted. So why wouldn't we give the lower courts a chance to evaluate whether there's sufficient evidence here for the state to actually go forward with this regulation?

Mr. Campbell (25:56):

Because we were arguing for strict scrutiny in the trial court. So Colorado knew that was our position and they had an opportunity to make their record. But the evidence that they submitted and the expert materials undermine their case. The expert materials admit that they don't have any study specifically focusing on precisely what's at issue here, which is voluntary conversations between a licensed professional and a minor.

(26:22)
Their expert materials also recognize that they cannot prove harm. We've cataloged all the places in their expert materials on page 22 of our reply brief where they concede that. And lastly, their own expert materials recognize that many people have experienced life-changing benefits from this kind of counseling. Again, the APA's own report talks about how this helps people because they're able to align their life with their religion. They're able to find deeper relationships with God. They're able to-

Justice Jackson (26:54):

Doesn't Colorado have some evidence that conversion therapy more broadly is harmful? I think there are like 25 states or something who have similar laws. So someone has some evidence related to the harmfulness of this activity, right?

Mr. Campbell (27:08):

Colorado certainly cites studies, but those studies suffer from significant flaws. The main flaw in all of them is that they lump together dissimilar approaches. They treat voluntary conversations the same as shock therapy.

Justice Jackson (27:23):

Thank you.

Speaker 1 (27:25):

Thank you Counsel.

Mr. Campbell (27:26):

Thank you.

Speaker 1 (27:30):

Mr. Mooppan.

Mr. Mooppan (27:31):

Mr. Chief Justice and may it please the court. Colorado's law is subject to strict scrutiny under the First Amendment for three straightforward reasons. First, the law restricts speech based on content and viewpoint. It prohibits petitioner from counseling minor clients to help change certain feelings and behaviors. It is thus subject to strict scrutiny unless an exception applies. Second, the law falls outside the exception for regulations of conduct that only incidentally burden speech. There is no separate non-speech conduct being regulated here and professional medical treatment is not exempt from the ordinary First Amendment rule that strict scrutiny applies even to laws that generally regulate conduct where those laws are triggered by the communicative content of speech. Third, the law falls outside any historically grounded exception. There is no long-standing tradition of states imposing this type of categorical prior restraint on the speech of therapists. I welcome this court's questions.

Speaker 2 (28:37):

In the context of strict scrutiny, how strong of evidence would Colorado have to show in order to prevail?

Mr. Mooppan (28:46):

Well, in this case, your Honor, Colorado has no evidence, so I-

Speaker 2 (28:50):

I understand that. But hypothetically, what would they have to show?

Mr. Mooppan (28:55):

I think for this sort of sweeping categorical prior restraint, I think they would have to have very strong evidence that there was direct harm to patients, no countervailing benefit, along those lines before we could even talk about whether they can meet the very high standards of strict scrutiny. But again, this case is a much easier case because I think counsel will have to concede that if you look at the preliminary injunction record, both the three pieces of evidence that they put in, the Glassgold report, the 2009 APA report, and the 2015 SAMHSA report and all the materials cited therein, none of those, none of them consider the type of speech at issue here. Speech by a licensed therapist involving non-aversive methods to minors. They just don't have any evidence of that. So certainly that's not enough under strict scrutiny.

Speaker 1 (29:47):

How does your analysis change if there is an aspect of conduct involved?

Mr. Mooppan (29:53):

So the same answer, your Honor. I think that if there is conduct, then the question would be is the restriction of speech incidental to the regulation of the conduct or not? And this court hasn't drawn a particularly clear line about when speech is close enough to conduct to be viewed as incidental. But here again, this is an easy case because there is no conduct. All that is happening here is speech. Now, there have been a lot of questions about, "Well, it's medical treatment." Or "What if you had a general rule about standard of care?" And this court's cases in cases like Holder and Cohen make clear that that is still speech. In Cohen, for example, breach of peace was a violation of the law. You could breach the peace in the courthouse in California in a lot of different ways.

Justice Jackson (30:38):

Right. But neither Cohen nor Holder involved medical treatment, right?

Mr. Mooppan (30:42):

So that's true, but that's just a label. And this court has also said that labels don't matter in cases like [inaudible 00:30:48]. There's nothing conceptually different. Take Holder, for example. In Holder, there was a statute that said don't materially support terrorists. You can materially support terrorists in lots of different ways. You could give them money. You could give them guns.

Mr. Mooppan (31:00):

… Or as in Holder, you could give them advice about how to commit their act.

Justice Jackson (31:03):

I understand, but when you look at the Tenth Circuit's opinion, they talk about how there is a long historical tradition of regulation of medical treatment as a particular thing, the provision of these kinds of therapies.

Mr. Mooppan (31:19):

Right. And the problem is the level of generality. There was also a long historical tradition in this country of regulating contempt of court and breach of peace. But what there is not a long history and tradition in this country of doing is regulating contempt of court and breach of peace when it's purely based on speech. And if you look at the history that the other side cites here, what is totally absent is the regulation of medical treatment that consists solely of speech-

Justice Jackson (31:44):

Does the federal government agree with Justice Kagan's flipside scenario? It doesn't matter to you that we're talking about Mrs. Chile's form of therapy versus gender-affirming care form of therapy.

Mr. Mooppan (31:56):

We do. And in fact we think that's a strong reason in support of our position. Colorado's position I think, inevitably leads to the conclusion that all the states in Skrmetti could have not only banned things like cross-sex hormones and prescription blockers, but puberty blockers, but also therapy, talk therapy along the same lines. Even Starker in the 1970s, it was the standard of care, professional consensus that being gay was a mental illness. On their position, a state in the 1970s could have made it illegal for a therapist in the state to counsel a gay patient that they weren't mentally ill that just cannot be right under the First Amendment.

Speaker 3 (32:39):

Can you addressed Justice Sotomayor's question from before about whether we should apply strict scrutiny, assuming we think it applies here or remand it to the Tenth Circuit to do so? What does the United States want to say about-

Mr. Mooppan (32:50):

You could remand, but we think like in [inaudible 00:32:52] this is a case where it would be probably fairly appropriate to actually just resolve the case here.

Speaker 3 (32:57):

Why?

Mr. Mooppan (32:57):

And for two reasons. One is there is ongoing irreparable harm to the petitioner because of the restriction of their speech. And the second is the evidentiary record here is totally clear that they can't satisfy strict scrutiny. If you look at the record on what's in the preliminary injunction record, there is just no evidence that this type of speech, not aversive therapy, not speech by non-licensed professionals, not speech to adults, but speech to minors by licensed therapists.

Speaker 3 (33:26):

Okay. Do you have… Just last point, last question from me. Standing. What's your position on the late-breaking standing argument?

Mr. Mooppan (33:34):

Precisely because it's late-breaking, first of all, I think the most important thing is it's mootness not standing. The question is whether there was a credible threat of enforcement for standing purposes. There clearly was because as counsel said, "If you match up paragraph 87 of the complaint with the statute, the conduct that petitioner wanted to gauge and is clearly covered by the plain text of the statute." At most we're talking about mootness because the government has come in now and suggested that somehow the plain text of the statute doesn't apply or they're not going to enforce the statute despite that. And we don't think that in these circumstances when the state comes in, posts their [inaudible 00:34:10] and advances a fairly implausible reading of their statute, that that should be enough to defeat standing.

(34:15)
If I could say one more thing about how implausible their reading is, as I understand their position, it seems to be that the language after including isn't independently sufficient. You have to be trying to change behavior orientation independently. If that was true, it would equally apply to aversive therapy. If someone went into a therapist's office and said, "I don't want to be gay anymore, I don't want to engage in same-sex conduct." If the therapist said, "Look, I can't change your orientation, but I can try to change your behavior and I'm going to use electroshock therapy." According to the state, as I understand their position, they seem to be saying that that's not covered by their statute. I find that awfully hard to believe. And that just sort of underscores how implausible their reading of the statute is and perhaps why it showed up on footnote 18 after the court granted cert.

Cheif Justice (35:10):

Thank you, Counsel. Justice Thomas, anything further? Justice Alito?

Justice Alito (35:13):

If we thought that this statute engages in viewpoint discrimination, does that have a bearing on whether we should decide whether it satisfies the applicable constitutional standard or remand the case?

Mr. Mooppan (35:28):

I think it makes it even clearer or why it fails strict scrutiny, but I think even as a content-based restriction, it pretty clearly fails strict scrutiny.

Justice Alito (35:37):

Thank you.

Cheif Justice (35:38):

Justice Sotomayor.

Justice Sotomayor (35:40):

We keep going back to the question of the studies and what's the strongest list tick-off. The thing that grants, that gives me pause in not applying strict scrutiny or in applying it is that none of the studies say that talk therapy is harmful. Is that correct? And Colorado….

Mr. Mooppan (36:04):

For this type for talk therapy by a licensed therapist to minors, they don't have any studies that say that that is either harmful or ineffective. And indeed, they often concede that they don't have that. The 2009 APA report expressly acknowledges at pages JA 221 and 256 expressly acknowledges that they don't have evidence of that. And if you look at the Glassgold Declaration, which is after 2009, she too doesn't cite anything. If you look at the studies that she cites in her declaration, all of them are conflating either aversive and non-aversive or licensed and non-licensed or minors or adults. They just don't have anything. And this comes up to the court after a PI hearing, and the strict scrutiny applies, they bore the burden and they just don't have anything.

Justice Sotomayor (36:54):

Thank you.

Cheif Justice (36:55):

Justice Kagan.

Justice Kagan (36:57):

Mr. Mooppan, you have an evocative example in your brief, which I want to pick up on, which is, let's say there's a school of psychotherapists that say that think that the best way to deal with suicidal patients is to go dare them to commit suicide. And you basically say, "Yes, strict scrutiny applies, but don't worry, it could be satisfied in a case like that." And I just want you to run through that and tell me why you think strict scrutiny applies and why you're confident that it could come out the way you think.

Mr. Mooppan (37:32):

I'll say a couple things about that, Your Honor. First we think strict scrutiny applies if the law was structured the way this law is-

Justice Kagan (37:38):

Yeah, that's what I'm-

Mr. Mooppan (37:39):

… So if it was a categorical prior restraint. If it was a categorical prior restraint, we think strict scrutiny applies because it's content-base, it's not incidental to any conduct and there isn't any history or tradition of imposing that sort of prior restraint so we think you're in strict scrutiny. As to why we think you could satisfy strict scrutiny because that type of speech has utterly no redeeming value. It might be the type of speech where you don't even need a study because it's so obviously harmful and there's no real benefit-

Justice Kagan (38:07):

Is that the right analysis? I mean, when I think about Brown, which I found one of the most difficult cases that I've ever encountered on this court, we really did insist, "No, you need to have studies, you need to have a kind of scientific showing of causation rather than rely on your intuitions that of course this causes harm." And why wouldn't that be true in a case like this? And if it's not true? If you are right, are we basically diluting our strict scrutiny standard in a way that will come back to haunt us elsewhere?

Mr. Mooppan (38:41):

I guess what I would say is this, Your Honor, if you were not confident in your judgment then you probably should require studies. But if you were confident and I think on a case like that, you probably should be, it would be enough. But what I absolutely agree with is that you should not dilute strict scrutiny. It's important that strict scrutiny retain its rigor where it applies. But it's also important as this court held in NIFLA not to create additional exceptions to the general rule that content-based restrictions are subject to strict scrutiny.

(39:09)
And if you take a step back, the other side just doesn't have any doctrinal or historical basis for getting this out of strict scrutiny. They can't say it's conduct because there is no conduct. They can't say it's history because there is no relevant history. All of their arguments would blow a massive hole in this court's case law emphasizing that its treatment is inconsistent with Holder and Cohen, which says that the fact that you could point to some other law that generally regulates conduct isn't enough if the particular speech is what's triggering that content-based restriction.

Justice Kagan (39:41):

Thank you.

Cheif Justice (39:41):

Justice Gorsuch.

Justice Gorsuch (39:44):

Justice Kagan's hypothetical, could you point to a long history against assisting suicides?

Mr. Mooppan (39:50):

You could, but whether there's a long history of speech related to that, especially in a context where the speech, where if suicide was unlawful. But it could be-

Justice Gorsuch (40:00):

There have been convictions for counseling people to commit suicide and encouraging them to do so and maybe providing a substantial step toward. Those have been all over the books for hundreds of years.

Mr. Mooppan (40:11):

It's true. It's a little trickier because… I don't want… I agree with you that that's a potential additional argument the state could make. I wouldn't want to leap to that because it would turn on things like-

Justice Gorsuch (40:21):

Speech versus conduct.

Mr. Mooppan (40:22):

… Is suicide prohibited? So it's unlawful conduct.

Justice Gorsuch (40:25):

No it's not. No it's not. But assisting is in most states.

Mr. Mooppan (40:28):

Right. Then it's a little bit harder to say it's speech incidental to regulated conduct-

Justice Gorsuch (40:32):

I follow you.

Mr. Mooppan (40:33):

… Even if suicide is illegal, the degree of connection, it's the incitement question under cases like Brandon.

Justice Gorsuch (40:38):

Yeah, essentially becomes an incitement.

Mr. Mooppan (40:41):

Exactly.

Justice Gorsuch (40:41):

And that is illegal.

Mr. Mooppan (40:43):

And I did want to make one other point to Justin Kagan, which is I think another way of thinking about this. Her question was about ex-ante [inaudible 00:40:52] prior restraint, but often this sort of speech, I think-

Justice Gorsuch (40:55):

It's always after the fact.

Mr. Mooppan (40:55):

… Quite easy as after the fact malpractice. But I would like to say a couple things about malpractice because I think malpractice presents very different types of questions than this sort of law.

Justice Gorsuch (41:05):

Because it's not prior restraint.

Mr. Mooppan (41:06):

Yes, for three reasons. The first reason is often malpractice is incidental to conduct it's speech that's restricted, tied to some conduct. The second is, as Your Honor just noted, this is a prior restraint. And this court is recognized in a lot of cases like Florida Star and NTEU and Madigan, that for First Amendment purposes it's very important, the difference between letting someone speak and then adjudicating individually that speech after the fact rather than categorically banning it ex ante. And the third and related point is as a matter of history and tradition, we have a long history and tradition in this country of malpractice. Now how that history and tradition cashes out for this type of speech is a tougher question to be candid. But what is not a tough question is there is no history and tradition for this sort of prior restraint.

Justice Gorsuch (41:53):

Thank you.

Cheif Justice (41:55):

Justice Kavanaugh? Justice Barrett? Justice Jackson?

Justice Jackson (41:58):

Can I ask you about licensing? You talked a lot about malpractice, but don't states tend to tie licensing requirements to the standard of care. And so if we had a situation like this in which a state licensing board disciplined a doctor for a speech-based practice outside of the standard of care, would that doctor have a First Amendment defense?

Mr. Mooppan (42:22):

There is a long history and tradition in this country of licensing and even licensing for people who engage in speech. What there isn't a long history and tradition of is as a condition of that license imposing a prior restraint on the types of speech they engage in. And we know from NIFLA that the mere fact that there's a license isn't enough to obviate First Amendment review. Obviously the whole point of NIFLA, it was regulated-

Justice Jackson (42:46):

But NIFLA was a notice scenario, right? It wasn't-

Mr. Mooppan (42:49):

For a licensed clinic.

Justice Jackson (42:50):

No, I understand. But it wasn't connected to the provision of services to particular people? That was part of the analysis. And so I guess what I'm saying is-

Mr. Mooppan (42:57):

That's true.

Justice Jackson (42:57):

… A doctor who's providing services pursuant to a state license. I'm just trying to understand how the First Amendment protects that doctor from providing therapy that is outside the standard of care.

Mr. Mooppan (43:10):

Well, because in NIFLA itself, the court made clear that part of the reason it was rejecting a professional speech exception is because it was very worried about the risks of the state interfering with the doctor-patient discourse. And it gave us an example how in certain authoritarian governments they do things like tell doctors you can't tell patients about birth control. Those people are all licensed. And so if there was some sort of argument that because you're licensed all of a sudden in the state could tell you what to say and what not to say to your patients, those very harms, the precise harms that NIFLA pointed to could happen.

Justice Jackson (43:44):

Can I ask you just one final question just sort of from a very broad perspective? I'm wondering why this regulation at issue here isn't really just the functional equivalent of Skrmetti? I realized that there were two different constitutional provisions at issue, but the regulations work in basically the same way. And the question of scrutiny applies in both contexts. It just seems odd to me that we might have a different result here.

Mr. Mooppan (44:13):

Well Skrmetti was a law that regulated on the basis of age and medical treatment.

Justice Jackson (44:18):

No, but here's what I mean. In Skrmetti we had a state that wanted to prohibit certain medical treatment, gender-affirming care being given to minors in the form of medication. And we said that was okay. And I understand there are particulars with respect to how the arguments, the constitutional arguments worked, but the state can prohibit that. Here we have a state that wants to prohibit gender-related medical treatment in the form of talk therapy, but we now have the first amendment that is inhibiting the state's ability to do that. And just from a very, very broad perspective concerned about making sure that we have equivalence with respect to these things.

Mr. Mooppan (44:59):

Well from a very broad perspective, there shouldn't be equivalence because obviously we have a First Amendment. When you have free [inaudible 00:45:05] speech-

Justice Jackson (45:05):

Because talk therapy, the speech is what is at the core for you. It's not necessarily the state's interest in protecting minors from what it believes to be certain harmful treatments.

Mr. Mooppan (45:15):

Right. Just like in Holder, the state had a very compelling interest in stopping material supportive terrorism. But when you stop terrorism through speech versus from conduct, the analysis is different.

Justice Jackson (45:24):

Got it. All right, thank you.

Cheif Justice (45:26):

Thank you counsel. Ms. Stevenson.

Ms. Stevenson (45:38):

Mr. Chief Justice and may it please the court. Throughout its history, this court has recognized that state power is at its apex when it regulates to ensure safety in the healthcare professions. Colorado's law lies at the bullseye center of this protection because it prohibits licensed professionals from performing one specific treatment because that treatment does not work and carries great risk of harm. No court has ever held that a law like this implicates the First Amendment and for good reason. First, the law applies only to treatments. That is only when a licensed professional is delivering clinical care to an individual patient. In that setting, providers have a duty to act in their patient's best interest and according to their professional standards, the First Amendment affords no exception.

(46:24)
Second, because this law governs only treatments, it does not interfere with any First Amendment interest. It does not stop a professional from expressing any viewpoint about that treatment to their patient or to anyone else. And because Colorado's law regulates treatments only and because it enforces the professional standard of care, the law falls squarely into the reasonable regulation of professional conduct that does not trigger First Amendment scrutiny. Petitioners argument on the other hand, cannot be reconciled with history precedent or common sense. A state cannot lose its power to regulate the very professionals that it licenses just because they are using words. A healthcare provider cannot be free to violate the standard of care just because they're using words and a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words.

(47:19)
Petitioner asked you to enjoin a bipartisan law passed by 25 different states, but she did not put one single piece of evidence into the record. Not a single expert, not a single study, not a single mental health professional willing to endorse conversion therapy. And there is a mountain of evidence to the contrary. On this record, we request that you affirm the denial of preliminary injunction. I welcome your questions.

Speaker 4 (47:44):

If petitioner were a non-therapist, would this be protected speech?

Ms. Stevenson (47:49):

Well, so I wanted to mention our law covers physicians as well, they're also subject to the conversion therapy ban. But if you're talking about a non-professional, I think it would. Our argument is premised on the notion that there is a special relationship between a healthcare provider and a patient where that patient is in a position of vulnerability and dependency on the healthcare provider and the healthcare provider owes fiduciary duties to act in that patient's best interest only.

Speaker 4 (48:18):

In Colorado are there only healthcare providers who provide this sort of service?

Ms. Stevenson (48:24):

No. The law excepts, I don't know factually if there are, but the law exempts religious ministers and ministries from this. And there is also a group of people called life coaches who could perform this therapy.

Speaker 4 (48:36):

What exactly transforms speech that is protected in that context to speech that is not in the therapist's context.

Ms. Stevenson (48:50):

It is the relationship between a healthcare provider and the patient that establishes this special context. And again, if you go to a life coach or you go to someone else, they're not licensed by the state, you're not expecting them to be complying with standards of care, you have a different expectation. When you're going to see a licensed healthcare professional who owes you fiduciary duties your expectations are different. You're expecting information that is complying with the standard of care and not expecting the practitioner to just be exercising their right to say whatever they want to say. And that's just materially different and it's always been treated so.

Speaker 4 (49:25):

What if someone who happened to be devoutly religious and actually relied more on the minister than the therapist, it seemed that that person would be equally dangerous?

Ms. Stevenson (49:38):

Well, I think that that would be a personal choice that they were making to rely on their religious minister. It wouldn't be a representation from the state that this is a licensed professional who we are holding to a certain standard of care. And so the expectation at least vis-a-vis the state license would matter a lot. And in addition, the religious minister, just as a legal matter, doesn't owe fiduciary duties in the same way that a healthcare practitioner does.

Cheif Justice (50:02):

Counsel, you said just because they're using words but our cases separate those out. Holder, NIFLA, in other words, just because they're engaged in conduct doesn't mean that their words aren't protected.

Ms. Stevenson (50:21):

Chief Justice, our case is absolutely premised on the notion that communications that are happening in the very specific context of treatment, which I will call a licensed professional delivering clinical care to an individual patient where they are subject to fiduciary duties and subject to malpractice, that that is a fundamentally different regulation than a regulation of people out in the world going about their business like at ISSU and Holder, where you have generally applicable statutes that apply to everyone. This is just a fundamentally different relationship. It has always been treated like that. In NIFLA the court talked about the fact that longstanding torts were malpractice, did not implicate heightened first amendment scrutiny. And I think that analysis is exactly the same here. Malpractice, you're dealing with that same individualized relationship. And this is the exact same context.

Justice Gorsuch (51:12):

Ms. Stevenson, I want to ask you what Justice Kagan called the mirror image question and Mr. Mooppan and Judge Hartz's example about homosexuality in the 1970s was professionally considered to be a mental health disorder. What if a state back then or might have passed a law prohibiting talk therapy that affirmed homosexuality, would that be subject to rational basis review on your theory?

Ms. Stevenson (51:40):

Your Honor, what our theory depends on is that there is a treatment being provided that's being regulated and that the regulation is consistent with the standard of care.

Justice Gorsuch (51:48):

Let's check both of those boxes in our hypothetical.

Ms. Stevenson (51:52):

Then yes. And I want to return to Justice Jackson's point because-

Justice Gorsuch (51:55):

So yes-

Ms. Stevenson (51:57):

They could regulate.

Justice Gorsuch (51:57):

… The state could forbid a regulated licensed professional from affirming homosexuality-

Ms. Stevenson (52:06):

If that-

Justice Gorsuch (52:06):

… If that were consistent with the then prevailing standard of care.

Ms. Stevenson (52:08):

That's right. And I don't-

Justice Gorsuch (52:10):

And so likewise, if the prevailing standard of care were to change or to solidify that this sort of talk therapy is beneficial to minors or at least not harmful to minors, then a state could pass a mirror image statute to Colorado's that prohibits any attempt to affirm changes of gender identity or sexual orientation. And that would be subject to mere rational basis review on your theory?

Ms. Stevenson (52:36):

That's right, Your Honor.

Justice Gorsuch (52:37):

Thank you.

Ms. Stevenson (52:38):

And just to illustrate it's not… The fact that there are words involved doesn't make a difference. States like we recognized in Skrmetti have the power to regulate even in the face of medical uncertainty, the laws or the standard of care could change there and the legislature can act to change that. And just-

Justice Gorsuch (52:56):

Even cases where medical uncertainty exists, you think that state could pass such a law prohibiting ex-ante speech that would affirm gender identity changes or sexual orientation changes or homosexuality?

Ms. Stevenson (53:14):

I don't think you have to reach that question in this case because here-

Justice Gorsuch (53:17):

I'm asking about the logic of your argument and I think you just said states can regulate even in the absence of medical consensus in this fashion. Is that right?

Ms. Stevenson (53:26):

Where there are no words involved and no First Amendment issue raised and I just-

Justice Gorsuch (53:30):

No, I'm asking, we're talking about speech and we're talking about therapy, talk therapy. That's what I want to get at. I think you're saying that if there's medical consensus, the state surely could pass mirror image laws. And I think you're saying, but I want to make sure that even in cases where there's medical uncertainty, the state could so regulate.

Ms. Stevenson (53:50):

You could reach a holding in this case that said, "Yes, treatment is treatment and it doesn't matter whether it's consistent with the standard of care or not." We would urge you to reach a narrower holding in this case.

Justice Gorsuch (54:02):

I understand that, but I'm asking you to answer my question. Could a state, when there's medical uncertainty, and we normally provide, this court has many times said when there's medical uncertainty, we defer to state judgments. And I think you're saying that yes. I think the logic of your position has to be yes. And I'll let you go as soon as you give me an answer up or down on the state of medical uncertainty and whether they could pass mirror image laws.

Ms. Stevenson (54:29):

I think it's less clear that that fits into the historical tradition identified in NIFLA that calls specifically out malpractice, which is an enforcement of the standard of care. And while that question could come up in another day here where we meet the standard of care, we don't think we need to reach it.

Speaker 3 (54:43):

Counsel, it's pretty important that a think about how this would apply to cases down the road. Let me describe medical uncertainty as competing medical views. And let's say that you have some medical experts that think gender-affirming care is dangerous to children and some that say that this kind of conversion talk therapy is dangerous. Can a state pick a side? I want to be very clear, it's not that the medical community says, "We just don't know." It's that there are competing strands in some states like say Tennessee, which was the state at issue in Skrmetti, pick one side, Colorado picks another side. Your position is that rational basis applies?

Ms. Stevenson (55:24):

Our position in this case is that the standard of care is important. It's important because that's been the historical tradition-

Speaker 3 (55:29):

But like Gorsuch said, just answer that question.

Ms. Stevenson (55:32):

No, our view is that that would not be the right rule here. One, because that's not consistent with the history and tradition identified in NIFLA and two, because the reason why that history is important and the reason why the standard of care is important is because it's a confirmation that the state is not actually trying to shut down viewpoints-

Speaker 3 (55:51):

Okay. I'm not understanding why the standard of care… Tell me, maybe I'm not following you. Are you saying that the standard of care… Why do you think the standard of care question isn't relevant there? Because wouldn't that be a situation in which Colorado was essentially saying that the standard of care that we're essentially looking at expert evidence and saying that we think this is what's appropriate, that we shouldn't have this kind of talk therapy and Tennessee's choosing a different one as a matter of its state law? Or am I not understanding that correctly?

Ms. Stevenson (56:24):

What I'm saying is where there is a First Amendment issue raised and the state can show we're regulating a treatment and we're regulating consistent with the standard of care, there is a confirmation of security that the court can have that there is no other motive going on to suppress viewpoints or expression. And that's what's consistent with-

Speaker 3 (56:43):

Colorado's law would trigger a rational basis, but Tennessee's hypothetical law would be strict screening-

Ms. Stevenson (56:49):

If it were against the standard of care.

Speaker 3 (56:50):

There's no mirror image rule. Justice Kagan-

Justice Jackson (56:52):

Counsel, can you define standard of care to help us? Is the standard of care a medical consensus about what should happen in this situation?

Ms. Stevenson (56:59):

It's the same standard of care that would apply in a malpractice case, yes. That is how malpractice defines-

Justice Jackson (57:04):

It's not a situation in which you have competing doctors and there isn't a consensus on what is supposed to happen?

Ms. Stevenson (57:11):

Correct.

Speaker 3 (57:11):

No, but I think you could have that. And my hypothetical, I'm saying that there might be a dispute in the medical community is my hypothetical, where you have some expert saying that this should be the standard of care and others saying something different. That was the hypothetical.

Ms. Stevenson (57:24):

Well the question would be is the regulation enforcing the existing standard of care? And you're describing a situation where it sounds like there would be many viable options under a standard of care.

Speaker 3 (57:35):

Yeah.

Ms. Stevenson (57:36):

Right. And so in that instance, I think that would raise more significant questions if there were actual multiple procedures, treatments available that all met the standard of care. And again, this is just a question that would be resolved exactly the same as it would be in a malpractice case where you could have competing experts as well and we'll decide is this thing inside or outside the standard of care? If Petitioner could put on an expert to show conversion therapy is inside the standard of care, then I think we wouldn't be here. That would be a different standard to apply to our law.

Justice Sotomayor (58:11):

I have a question about how you're distinguishing Holder. It was a generalized law against providing material support to terrorists, but you seem to be suggesting that if there was a Bar Association rule that said it's a breach of your duty as a lawyer if you tell terrorists how they can break the law, that that would be subject to rational basis review.

Ms. Stevenson (58:46):

I think that again, the critical aspect of the relationship is that there is a duty between the professional and the receiver of the professional services. And it sounds like in the law that you're describing, Justice Sotomayor, there would be law is passed for some other interest than to protect the client in that case. And I think that's materially different when we're talking about a special relationship where the client is depending on the expertise and training of the lawyer-

Justice Sotomayor (59:13):

But I'm just not sure why that makes a difference. If we're talking about the speech aspects of it, why that becomes any less protected?

Ms. Stevenson (59:26):

It's because that's how we've always treated speech between, especially in the healthcare context between providers and patients. This has been an area that has been heavily regulated from the beginning of our country and no one has ever suggested that a doctor has a First Amendment defense to say the wrong advice to their patient. And just to give an example on this speech conduct distinction, if I went to my doctor and had high cholesterol, she could tell me a number of things. She could say, "Come back next year." She could say, "Eat less red meat." She could say, "I'm going to prescribe you a statin." Or she could say, "You need an arterial stent." And whichever way she violated the standard of care and making a wrong judgment there could be equally harmful to me. And so I don't see how you can parse out whether there is conduct involved in terms of when you're talking about professional services delivered in a fiduciary relationship where the client or the patient is expecting accurate information and information delivered to benefit their health.

Justice Alito (01:00:32):

I don't really see a difference between the argument that you're making now and the argument that I thought we rejected in NIFLA that professional speech is a special category that's outside normal First Amendment scrutiny. But let me put that aside and ask about your interpretation of the statute at this stage in the litigation. And let me give you this example. Suppose an adolescent male comes to a licensed therapist and says he's attracted to other males but feels uneasy and guilty about those feelings and he wants to end or lessen them and asks for the therapist's help in doing so. Under your interpretation of the statute, is that banned?

Ms. Stevenson (01:01:20):

Your Honor, our interpretation of the statute turns entirely on whether the purpose of the therapy is to change the person's sexual orientation or gender identity. If that minor-

Justice Alito (01:01:31):

What is the answer to my question? Is that banned or is it not banned?

Ms. Stevenson (01:01:35):

If the therapist told him or he asked, "Can you help me become straight?" The answer would be it would be banned. If it was, "Can you help me cope with my feelings as to how I am and how I want to live my life," that's permitted and all of that comes from-

Justice Alito (01:01:49):

Why doesn't the situation that I've just described false squarely within the terms of the statute, which says that conversion therapy includes, "

Justice Alito (01:02:00):

… quote, efforts to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.

Speaker 5 (01:02:10):

If those things are undertaken with the purpose of changing orientation or identity, then they violate the statute.

Justice Alito (01:02:17):

But that's not what your statute says.

Speaker 5 (01:02:19):

This is the way we've interpreted the statute from the beginning of this case. It's the way both of the lower courts interpreted the statute. It's the way every state that has this statute interprets it. And the reason why is because the harms from conversion therapy come from when you tell a young person, you can change this innate thing about yourself. And they try and they try and they fail. And then they have shame and they're miserable. And then it ruins their relationships with their family or-

Justice Alito (01:02:45):

Well, I know. I understand.

Speaker 5 (01:02:46):

This is where the harm comes from. And so it they're-

Justice Alito (01:02:49):

I understand all of those arguments. What I don't understand is how you can square your interpretation with the plain meaning of the statute. Are you suggesting that everything, beginning with the word including is irrelevant? You just want all of that deleted from the statute?

Speaker 5 (01:03:10):

No, it is illustrative. And so for example, one of the ways that people try to engage in conversion therapy would be by saying, "Look, you need to start dressing like a boy and then that will make you change your gender identity." That's a way you could go about that. But if the minor wants to start dressing like a boy to match his gender identity, not because he thinks it's going to change-

Justice Alito (01:03:33):

That's just not the way language works. Suppose that there's a sign, there's a rule that says you may not bring any dangerous animals in the park, including pit bulls. Doesn't that definitively provide you can't bring a pit bull into the park?

Speaker 5 (01:03:50):

Yes, because a pit bull is a subsidiary of a dangerous animal. But I don't think you can read an including to contradict the anchored term. So here, conversion therapy is an effort to change orientation or identity. If you read it to not mean that then you've ruined that part of the statute.

Justice Alito (01:04:07):

All right.

Speaker 5 (01:04:08):

I can't say-

Justice Alito (01:04:09):

I'm sorry, go ahead.

Speaker 5 (01:04:10):

Oh, I was just going to say I can't say I like meat including tomatoes and celery. That doesn't make any sense. And that's how we read the statute. And again, have consistently read the statute that way from the beginning of this case in every pleading that we filed.

Justice Alito (01:04:24):

If you recall the example that I gave you, I'll give it to you again because I want to contrast it with another situation. So in the first situation, an adolescent male comes to a licensed therapist and says he's attracted to other males, but he feels uneasy and guilty about those feelings. He wants to end or lessen them, and he asks for the therapist's help in doing so. The other situation is similar. Adolescent male comes to a licensed therapist as he's attracted to other males. Feels uneasy and guilty about those feelings and he wants the therapist's help so he will feel comfortable as a gay young man.

(01:05:05)
It seems to me your statute dictates opposite results in those two situations, based on the viewpoint expressed. One viewpoint is the viewpoint that a minor should be able to obtain talk therapy to overcome same-sex attraction if that's what or he or she wants. And the other is the viewpoint that the minor should not be able to obtain talk therapy to overcome same-sex attraction, even if that is what he or she wants. It looks like blatant viewpoint discrimination.

Speaker 5 (01:05:37):

As I heard your examples, I think they would both be permissible because it didn't sound like in either case the goal was to actually change sexual orientation. And again, that's the touchstone because that's where the harms come from. And if there is no goal being reached-

Justice Kagan (01:05:52):

I guess I had the same kind of question that Justice Alito had. I mean, if we assume for example, and this is a big assumption on your part, but just assume that we are in normal free speech land rather than in this kind of doctor land. And if a doctor says, "I know you identify as gay and I'm going to help you accept that." And another doctor says, "I know you identify as gay and I'm going to help you to change that." And one of those is permissible and the other is not. That seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination.

Speaker 5 (01:06:32):

I don't disagree with that, Justice Kagan. And that's why medical treatment has to be treated differently. Because anytime you exclude one harmful practice, you are by definition saying these things are allowed because they're not harmful. And these things are excluded because they are harmful. That's the driving force behind regulating the particular practice.

Justice Alito (01:06:55):

Let me ask you about the standing argument. There's a statute on books. And if it prohibits what the petitioner wants to do, why doesn't she have standing? Why is it an answer? Well, we haven't prosecuted her or anybody else under this statute.

Speaker 5 (01:07:21):

I think it would if she said that she wanted to do something that violated the statute. And I think there's just been an ambiguity that has persisted in this case. What I can say is if she does not want to engage in a therapy for the purpose of changing a minor's sexual orientation or gender identity, then she is not violating the statute.

Speaker 6 (01:07:42):

Well, both the district court, which ruled for you, found standing. And the 10th Circuit which ruled for you found standing. And you didn't cross appeal on those and not that you had to, it's standing. You didn't even put a Roman numeral in your brief on it or even a subsection. It's footnote 18 on page 23. That doesn't exactly suggest that you have great confidence in that argument, does it?

Speaker 5 (01:08:11):

Well, we recognize we lost it twice. And again, it is the petitioner's burden and it has been a persistent issue in the case, I think, in defining exactly what it is she wants to do. And to come back to this conduct point-

Speaker 6 (01:08:23):

But if she does consistent with a patient's… I'm reading the verified complaint. If I understand that to mean paragraphs 86, 87 that she wishes to help clients who voluntarily come and with the desire to change their behaviors, expressions, attractions, and identity, then that would give her standing, wouldn't it?

Speaker 5 (01:08:45):

Identity, yes.

Speaker 6 (01:08:47):

Only identity.

Speaker 5 (01:08:48):

The other's, not.

Speaker 6 (01:08:49):

The other's, not, because of your peculiar reading of the statute, but identity that. Would give her standing.

Speaker 5 (01:08:55):

The change in sexual orientation or identity is the key to-

Speaker 6 (01:08:58):

And that would give her standing?

Speaker 5 (01:08:59):

That would.

Speaker 6 (01:09:00):

Okay.

Justice Kagan (01:09:01):

Because you're not disavowing that.

Speaker 5 (01:09:03):

No.

Justice Kagan (01:09:04):

Okay. So, that settles the standing question.

Mr. Chief Justice (01:09:10):

Thank you, counsel. Justice Thomas, anything further?

Justice Thomas (01:09:14):

You rely on the history of regulating the medical profession quite a bit. What's the history of regulating therapists? When did that begin?

Speaker 5 (01:09:27):

Right. So, I would say mental health and healthcare delivered through words both were in full force at the founding of this country. At the time, that that was done by people you might call physicians. And all of their practice was pretty much carried out through words and giving advice. As time went on and specialties developed further and the mental health profession sort of came into existence, those same standards applied and governed psychologists and therapists. And then I would say the licensing of counselors as other professionals in the mental health field was sort of the second half of the 1900s.

Justice Thomas (01:10:07):

With respect to this type of regulation that is a prior restraint on speech, what was the first example of that?

Speaker 5 (01:10:16):

So Justice Thomas, I want to push back on the notion that this is a prior restraint on speech. There's no enforcement of this law, unless somebody files a complaint with petitioners licensing board and she has an adjudicatory hearing, an opportunity for judicial review and all those things. So, it's like many other statutes in that way. It simply calls out a specific practice that violates the standard of care.

(01:10:41)
And those types of statutes have been around for a very long time. They were in the late 1800s. Those types of statutes governed medical professionals and then have been added over time as the mental health profession has developed and government mental health professionals in every state.

Mr. Chief Justice (01:10:59):

Justice Alito?

Justice Alito (01:11:01):

Your argument depends very heavily on the standard of care, which I take it is defined by a medical consensus. Is that correct?

Speaker 5 (01:11:14):

That's correct.

Justice Alito (01:11:16):

I mean the medical consensus is usually very reasonable and it's very important. But have there been times when the medical consensus has been politicized, has been taken over by ideology?

Speaker 5 (01:11:35):

We have no facts about that in this case, but I wouldn't disagree that that's possible. And I think that's really-

Justice Alito (01:11:40):

Isn't it a matter of fact that it's happened in the past?

Speaker 5 (01:11:42):

I think that's-

Justice Alito (01:11:43):

Regenerations of idiots are enough?

Speaker 5 (01:11:46):

I think that's certainly a concern. And if there were evidence of that in the record as to whether or not there were a standard of care that wasn't really based on patient safety, that would be highly relevant evidence.

Justice Alito (01:11:57):

Well, isn't that a reason to apply First Amendment scrutiny when what is being regulated is pure speech and not just saying medical standard of care or medical consensus. That's the end of the day rational basis review, anything goes.

Speaker 5 (01:12:16):

No, your Honor, because again, when we're talking about words used to deliver medical treatment, those issues are the same. Whether you're talking about words being used or whether you're talking about medical practices that don't involve words, those issues are the exact same. And there is nothing about this statute, for example, that stops anyone from sharing any opinion about conversion therapy or about how the consensus on that was reached. And again, in this case, there is just no evidence of any motive by either the Colorado legislature or any medical association to reach this conclusion based on anything other than protection of minors and a decades-long record of research.

Justice Alito (01:13:00):

Was there a time when many medical professionals thought that certain people should not be permitted to procreate because they had low IQs?

Speaker 5 (01:13:12):

I don't know that, but I will accept the premise.

Justice Alito (01:13:15):

Was there a time when there were many, many medical professionals who thought that every child born with Down Syndrome should be immediately put in an institution?

Speaker 5 (01:13:25):

I don't know that, your Honor.

Justice Alito (01:13:27):

Thank you.

Mr. Chief Justice (01:13:28):

Justice Sotomayor? Justice Kagan?

Justice Kagan (01:13:33):

I could go back to your example about having high cholesterol and all the various things that a doctor could say. And I don't think like anybody wants to remove doctors from liability or any kind of professional sanction for giving utterly wrong medical advice just because the giving of that advice involves words. Right? So if the doctor said you can lower your cholesterol by going out and eating dessert every meal, we would think that was not a good thing for a doctor to say. And we wouldn't say, "Oh, the First Amendment has something to do with this."

(01:14:20)
But I guess I have this feeling that that's a different kind of case. That is a case where the speech is incidental to whatever conduct it is that the doctor is offering. Whether it's you should take this pill or you should do these eating practices or so forth and so on. And are you saying that there's no distinction between what we're dealing with here and the range of things that a doctor can tell you in her office about what kind of care is appropriate for any particular condition?

Speaker 5 (01:15:01):

I don't think there's any distinction, because just like in the medical field, counseling is an evidence-based practice that petitioner trained for thousands of hours to be qualified to do. And her advice and counseling therapies through her words can be extremely harmful. And so, there is no difference between that and the medical context.

(01:15:23)
And I wanted to come back to the first part of your question about calling out a specific practice that violates the standard of care. This is the thing that legislatures do not irregularly. When you have a practice that although it's ineffective or although it's harmful, it persists anyway. So for example, in Colorado there's a specific provision that says it's unprofessional conduct for medical doctors to prescribe anabolic steroids for sports performance. Now normally, something like that might die out, but you can understand why there are cultural pressures that make this continue to be interesting to people even when they know there's harm. And this has been the problem with conversion therapy. Although every theory that it's relied on has been debunked and debunked and debunked, people continue to seek it and to want it and to believe that they can make this change. And I think that's understandable. It's a challenge to find out that you're a gay or transgender person.

(01:16:14)
And then finally, to the issue of regulating a specific practice, we cited you a couple of cases about this false memory recovery. So, there was a practice going on with psychotherapists in the 1990s where they were using a therapy that was causing children to come up with false memories of sexual abuse. And there were several malpractice cases about it. That therapy died out on its own. But if it hadn't, and therapists had continued to do it, and again, it was done only with words, surely a state could step in and say, "That's unprofessional conduct." And that's exactly what Colorado and 25 other states have done here.

Justice Kagan (01:16:51):

Thank you.

Mr. Chief Justice (01:16:54):

Justice Gorsuch? Ms. Kavanaugh? Justice Barrett?

Justice Barrett (01:16:55):

What is your best evidence on this record, thinking about the application of strict scrutiny that this kind of talk therapy by a professional licensed therapists to minors causes harm?

Speaker 5 (01:17:07):

Sure. I would direct you, your Honor, to JA64 through 74. And I do want to note this particular argument about this specific study came up for the first time at 10th Circuit oral argument. And I think had we had an opportunity, we could absolutely have put in even more evidence to nail this down in the district court.

(01:17:27)
But if you look there, our expert walks through all of the research that's been done since 2009. Aversive practices have not been in use since the 1980s or before, so all of these studies do not concern aversive practices at all. And then I would direct you specifically to the Green Study in the Turban Study. The Green Study looked at 34,013 to 25 year olds who had gone through conversion therapy. And after controlling for other factors, found there was a two times rate of attempted suicides among that group.

(01:17:58)
And in the Turban Study, Dr. Turban looked at 27,000 participants. This was specifically on gender identity change efforts, including people who had received those efforts under the age of 10. He looked specifically at childhood exposure and found association with adverse mental health outcomes in adulthood including suicide ideation and attempts.

(01:18:19)
This question about whether it's voluntary or not, that's just not an issue that had ever been raised to focus on. And especially with children under 10, I don't even know how you would assess that. I would also direct you to Dr. Turban's amicus brief though where he further describes the techniques that he used in his study to show how much they would align with I think what petitioner would imagine that she would want to try to do.

(01:18:43)
And then you have to put it in the context of people have been trying to do conversion therapy for a hundred years with no record of success. There is no study, despite the fact that people tried to advance this practice, that has ever shown that it has any chance of being efficacious. And again, the harm from it comes not from the aversive practice. It comes from telling someone there's something innate about yourself you can change. And then you spend all kinds of time and effort trying to do that and you fail.

Justice Barrett (01:19:13):

But you bore the burden. She didn't have to show that it was efficacious, right? You had to show that it caused harm.

Speaker 5 (01:19:20):

Right. But in light of a hundred years of studies that all point in the same direction with no efficaciousness and evidence of significant risk of harm, we think we amply carried that burden.

Justice Barrett (01:19:31):

Tell me more. You said that in the 10th Circuit you wished, because if you had been back before the district court, you could have introduced more evidence. Did you not? It was a P.I. hearing. Why didn't you have the opportunity to introduce all the evidence you wanted to?

Speaker 5 (01:19:45):

There was no hearing. We filed a response in response to petitioner's brief where she had no evidence. We put in a 60-page expert declaration covering all of this. And including not just the studies but the fact that all of the theories underlying conversion therapy have been debunked. Initially, it was homosexuality is a pathology that we need to treat. That's been debunked. Then it was homosexuality is caused by trauma. That's been debunked. Then it was homosexuality is caused by a relationship you have with your parents. That's been debunked. There's not even a [inaudible 01:20:18] theory now.

Justice Barrett (01:20:18):

But just on the very specific evidentiary question, are you representing then that if this went back, you want the opportunity to have a hearing to put in different evidence that it causes harm?

Speaker 5 (01:20:26):

I think if there was some argument that we need to show that these studies were done on people who engaged in voluntary therapy, I think you could potentially go to the study authors and get that. But that particular critique was never raised. And again, I just think if what petitioner is saying is you have to have a randomized control trial on children in order to establish with respect to the particular thing that she wants to do, that would be, I think, a study that… Not even medicine would require a study like that to come up with a standard of care.

Mr. Chief Justice (01:21:05):

Justice Jackson?

Justice Jackson (01:21:05):

Can I just quickly get you to address Justice Alito's question about how you distinguish NIFLA? You have definitely focused very clearly on the special relationship, the professional context, and the fact that this is medical care being provided in a counseling relationship. But as Justice Alito points out, we have addressed professional speech and the extent to which it should be treated differently. And it has said no. So, how do you distinguish that case?

Speaker 5 (01:21:38):

So professional speech, as it was addressed in NIFLA, is a much broader category than what we're talking about here. It would include things professionals are saying in any professional capacity. We are focused on the very narrow context where a healthcare provider is delivering healthcare to a patient. They are under fiduciary duties to act in that patient's best interest. And they are subject to malpractice liability and that is just a different category of speech.

Justice Jackson (01:22:05):

So, you're saying that this is a very narrow carve-out? No matter what we sort of said otherwise with respect to professional, that you'd be advocating for very narrow rule here?

Speaker 5 (01:22:16):

Yes, it would be very narrow. And I think it's consistent with the precise doctrines that NIFLA called out as not triggering heightened First Amendment scrutiny like malpractice, like informed consent. Because those are things that are taking place in this exact same relationship that we're talking about here.

Justice Jackson (01:22:36):

Thank you.

Mr. Chief Justice (01:22:37):

Thank you counsel. [inaudible 01:22:40] Mr. Campbell?

Mr. Campbell (01:22:43):

Thank you, Mr. Chief Justice. On Standing Justice Gorsuch, in response to your question, I heard the state say that they are not disavowing enforcement, particularly if the effort involves discussions that seek change on identity. On pages 216 to 217, Ms. Chiles talks about how she wants to have full conversations exploring issues of identity and gender, and that includes considering change.

(01:23:10)
On the issue of studies, there was a reference to the Green and Turban studies. All of those studies relied on biased sampling, self-reporting. They conflated aversive techniques with voluntary counseling. They did not isolate licensed counselors and they did not purport even in their own study to prove causation. Beyond that Justice Thomas, in response to one of your questions, the state conceded that it would be speech if it was a life coach, but it's, for some reason, not protected speech if it is a professional. That is an attempt to revive the professional speech doctrine that this court rejected In NIFLA.

(01:23:49)
This law's viewpoint discrimination is even worse than we've heard so far this morning because the state of Colorado would allow a 12-year-old without their parents' consent, to enter into counseling that would go the opposite way on these issues of gender identity and sexual orientation. But if that same 12-year-old with their parents' consent want to seek counseling in the opposite direction, the kind that my client would provide, they are not able to do that. That kind of viewpoint discrimination must survive strict scrutiny.

(01:24:24)
This law harms gender dysphoric kids because the statistics that we've cited in our verified complaint as well as in the brief that we cited with this court indicate that 90% of young people who are struggling with gender dysphoria before puberty work their way through it and realign their identity with their sex. But if one of those children go to a counselor and they specifically say, "That is the help I want.", realigning my identity with their sex, they cannot receive that help from someone like my client.

(01:24:57)
Moreover, if they're continuing down the path of transition, then unfortunately they get locked into that path. And eventually it leads over 90% of the time, once they start down the path of social transition, it will lead to the route of medicalized transition. Which the CAS report tells us comes with a lot of harm and devastation.

(01:25:19)
And lastly, there should be no remand in this case for all of the reasons that I just explained. In addition to that, I heard Ms. Stevenson say that they were aware below that we were arguing for strict scrutiny and that they had an opportunity to put studies in. So, all remand would do in this case is continue to prolong the ongoing harm that's happening not only to my client, but more importantly the kids who are struggling with gender dysphoria.

Mr. Chief Justice (01:25:47):

Thank you, counsel. The case is submitted.

Speaker 7 (01:25:48):

Folks, [inaudible 01:26:07].

(01:25:48)
Folks, [inaudible 01:27:05] please take a seat. Thank you.

Mr. Chief Justice (01:27:14):

We'll hear argument next in Case 24-5774 Barrett versus United States. Mr. Larson.

Mr. Larson (01:27:20):

Mr. Chief Justice, and may it please the court. Possessing a gun in violation of 924 (C) 1 (A) is a lesser included offense of using it lethally in violation of 924 (J). The offenses are therefore the same for purposes of double jeopardy, meaning there's a presumption that Congress did not intend two punishments for one fatal shooting. And this presumption controls, unless there is a clear indication that Congress wanted to double punish. But there isn't any.

(01:27:48)
As court appointed amicus acknowledges 924 (J) says nothing about punishment under both statutes and is detailed in our briefing. Neither does 924 (C). On the contrary, while 924 (C) is very clear that its punishment applies in addition to that for the underlying felony, it does not say its punishment applies in addition to that for a lethal shooting in violation of 924 (J). And the reason for this, as your honors explained in Laura, is that Congress designed 924 (J)'s penalties, which include life in prison and even death, to account for the seriousness of the offense by themselves without incorporating penalties from subsection C.

(01:28:29)
Indeed, as the court also noted in Laura, when Congress wrote 924 (J) in 1994, it's specifically considered but rejected a proposal to impose multiple punishments for a fatal shooting. Only in 2005 did Congress write 924 (C) 5 to cumulatively punish fatal gun use, but only where armor piercing ammunition is used. And that is not this case. In short, your honors, and as 924 (C) 5 confirms, congress knows how to order multiple punishments for a lethal shooting when it wants to. It has not done so here. I welcome the court's questions.

Justice Thomas (01:29:09):

So, are you saying that all of 924 (C) 1 is a lesser included offense of 924 (J)?

Mr. Larson (01:29:21):

So not necessarily, your Honor. If you're referring to things like machine gun use or use of a silencer, we recognize that question isn't presented here. We address it in one of our briefs, the scenario of voluntary manslaughter with machine gun. And we say maybe those are different crimes, maybe they're not.

Justice Thomas (01:29:40):

What about 924 (C) 1 (A) 2 and 3?

Mr. Larson (01:29:50):

1A 2-

Justice Thomas (01:29:53):

2 is brandishing and 3 is discharge.

Mr. Larson (01:29:58):

Yes. So, the same answer to our situation involving the machine gun. So perhaps this could go either way, your Honor, in that scenario, which is not, of course the case here. Strictly speaking, brandishing is a requirement under C. But brandishing may or may not be an element of 924 (G). This court, however, explained in the Whalen case where there was a lesser included offense of rape and a greater included offense of murder, felony murder. The court said, "Well, strictly speaking rape is not an element of felony murder, but it is one way you can commit felony murder." "And in this case", the court said in Whalen, "that is the lesser included defense." So it may be, your honor, that in a case where brandishing discharge is shown, use of a machine gun or silencer is shown and a jury convicts on J, they will necessarily find that's the lesser included. Of course, that's not the posture here. We have simple possession, which is always a lesser included defense of legal use.

Speaker 8 (01:30:52):

Your whole point was that Congress didn't speak clearly enough here, but C1 D2 as you know because Amicus emphasizes it, I mean, I don't know how that could be clearer. "No term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person." That's very clear. And it starts with not withstanding any other provision of law, in D. Not withstanding any, any other provision of law. No term of imprisonment imposed shall run concurrently.

Mr. Larson (01:31:34):

Indeed, your honor. So the operative language to activate this section is that a term of imprisonment has to be imposed under this subsection. That is the question here. May a term of imprisonment be imposed under C if someone is punished under J for the same offense? That's the question here. And as to that question C1 D2 is silent. It doesn't address it. And as the court has explained, silence cannot be a clear indication to double punish. Also, your Honor-

Speaker 8 (01:31:59):

And what would be necessary do you think, to make that clear?

Mr. Larson (01:32:03):

What would be necessary would be something like what appears elsewhere in the statute. We have two examples in 924 (C) of where Congress has ordered multiple punishments. One, it said if you possess a gun, you get a punishment for that in addition to the underlying crime of violence. It's also in C 5 said if you use a gun loaded with armor piercing ammunition to kill, you're getting a lot of [inaudible 01:32:24].

Speaker 8 (01:32:23):

C 5 came in much later. I mean this was in 71, right that 924 ( C) 1 (D) 2 came in?

Mr. Larson (01:32:34):

Yes. And even when it came in, your Honor, in Simpson and Busick, this language was in the statute. And this court said in Simpson and Busick that this language requiring a minimum, requiring it to be consecutive was not sufficient to constitute a clear indication. That's why Congress had to amend the statute to make it crystal clear that it wanted to double punish both [inaudible 01:32:54].

Speaker 8 (01:32:53):

So you want it to be in both 924 (J) and in 924 (C), the provision that it

Justice Jackson (01:33:01):

… can't be concurrent.

Larson (01:33:02):

No, Your Honor. There is no provision in either of these statutes addressing the scenario here saying-

Justice Barrett (01:33:10):

Is that because you are distinguishing two convictions versus two punishments? In other words, it seems to me that this provision that Justice Kavanaugh is pointing to is about whether you can run the sentences that have been validly determined relative to two separate convictions, whether you can run those or have to run those concurrently? But your question is can we have two separate convictions under these circumstances?

Larson (01:33:46):

Precisely, Your Honor.

Justice Barrett (01:33:47):

That's why this doesn't have anything to do with that.

Larson (01:33:50):

Precisely, Your Honor.

Justice Barrett (01:33:50):

The question that's at issue under double jeopardy, it's, can we have two separate convictions for the same offense, for the same conduct? Not whether the sentences that flow from those two separate convictions can be run concurrently or consecutively or whatever.

Justice Jackson (01:34:09):

Well, I thought we talked about that in oral argument in Laura. We foresaw I think exactly what was going to happen at the oral argument in Laura about this.

Larson (01:34:21):

Well, Justice Jackson, you're absolutely right. We don't get to sentencing unless there's a valid constitutional conviction imposed. That is the question in this case. Can someone be convicted under (c)(1), and also (j) for the same crime and nothing-

Justice Sotomayor (01:34:35):

Can you explain and I think maybe this would address Justice Kavanaugh, he'll correct me if it doesn't count. What is it in 924(c) that permits the two convictions to run consecutively? I think you're saying an intent to allow for dual convictions is what you need to have Congress show, and not speaking only to the length or timing of a sentence. Correct? You need more than length or timing. What is it in 924(c) that permits a dual conviction?

Larson (01:35:25):

The dual conviction in 924(c)(1)(A) is for gun possession and the underlying crime of violence or drug trafficking offense. The Congress is very clear, you can stack those punishments, and if you do in fact impose a sentence under (c) in that scenario, that sentence will have to run consecutive to the underlying offense. That is not this case, Your Honor.

Justice Sotomayor (01:35:45):

All right. But if it's dual convictions, generally, you have a drug offense for carrying a firearm. You get a sentence for that. You have to run this consecutively. What is it in the statute that you say makes it clear that it's speaking not just about punishment but about conviction as well?

Larson (01:36:05):

Well, when it talks about punishment, conviction, sentence, these words in the case law are used interchangeably. The idea under the double jeopardy clause is that you can't be punished twice for the same offense. We know here we're talking about one offense. So the question is there any clear indication that Congress wanted someone like Mr. Barrett to get multiple punishments? I think it's important to remember that when Congress wrote 924( j), the statutes didn't look like they looked today in 1994, 924(c) penalty was a fixed five years. It was not a minimum. Congress found that insufficient. They're like, "If you kill someone you need more than five years in prison." It wrote (j) to allow for the death penalty and up to life in prison. It rejected the proposal that a fatal shooting should be subject to (c)'s multiple punishment regime. And this court explained in Laura, it designed (j) to account for the seriousness of killing by itself.

(01:36:59)
There's no indication that Congress thought someone sentenced to death under (j), or up to life in prison should get five years on top. What's the point of that? There may be something strange nowadays when we look at (c) saying it's a minimum of five, and why would Congress want to have a minimum for gun possession but not fatal use? But this court unanimously rejected that argument in Laura. That was the government's argument there, if you have a minimum for possession, you got to have one for lethal use. This court said no. There's no indication in the statute of that Congress didn't clearly indicate that that's what it wanted.

Justice Alito (01:37:34):

Well, when we interpret what a particular provision means today, don't we have to look at all of the relevant provisions that are in place at the present time?

Larson (01:37:52):

Yes, Your Honor. I think it's very telling that in the 30 plus years since (j) was written-

Justice Alito (01:37:57):

In other words, we have to assume that it's all meant to fit together somehow?

Larson (01:38:03):

I think it's fair to look at the passage of time, Your Honor, and I think that works in our favor, because there's no suggestion by anyone here that in 1994 Congress wanted something sentenced to death to get 5 years on top. It may seem odd now that five is a floor rather than a fixed term, but Congress has had 31 years, Your Honor, to address this problem, if it is a problem. Congress has decided it's not a problem, and why? Because (j) is enough on its own to punish someone who lethally uses a gun.

Justice Alito (01:38:32):

Do you think that a clear congressional desire to provide multiple punishments for a greater and lesser included offense can be inferred from the penalty scheme? Can it ever be inferred from the penalty scheme?

Larson (01:38:52):

Your Honor, says the penalty scheme, so every statute says-

Justice Alito (01:38:55):

Suppose that the maximum penalty for the greater offense in the sense that it includes more elements is one year, but the maximum penalty for the lesser included offense in that it has fewer elements is two years. Do you think that a clear congressional desire to have multiple punishments in that situation could be inferred?

Larson (01:39:27):

No, Your Honor, and there is a case that we found after briefing by Judge Posner, it's US v. Peel, P-E-E-L, 7th Circuit 2010. There the judge explained, "The lesser included offense was obstruction of justice with a 20-year maximum." The greater offense in that case was bankruptcy fraud, which is a five-year max. It's exactly the scenario that Your Honor is just posited this weird situation where the greater offense actually has a lower penalty. Judge Posner says, "Same offense, no clear indication to double punish. I'm sending it back for one conviction to be vacated."

Justice Alito (01:40:02):

Well, are we bound by that decision?

Larson (01:40:05):

No, but I think it's a good example-

Justice Alito (01:40:06):

Why does it make sense?

Larson (01:40:08):

I think it makes sense-

Justice Alito (01:40:10):

Why does it make sense?

Larson (01:40:12):

I think it makes sense Your Honor, because it's entirely in line with this court's consistent jurisprudence that because courts don't decide punishments, it's Congress that does. Courts have to be very careful before they decide that Congress wanted to pile on and double punish one crime. It needs a clear indication and the fact that two different statutes may require punishment, may require even minimum punishments or even have clauses saying, "Notwithstanding any other provision of law, don't suspend the sentence. I'm describing now the scenario is in Rutledge." This court said that is not enough to be a clear indication to double punish. There must be more and here there is no more.

Speaker 9 (01:40:48):

Thank you, Counsel. What exactly short of express language would you say allows multiple punishments?

Larson (01:40:57):

The two examples that both we and the government cite in (c), namely (c)(I)(A) and (c)(v), there's language, it's not the same language, you can use different language. It clearly indicates there that Congress did want multiple punishments, and I think we do look to the text. That's the best expression of Congress's intent, and here, there simply is no text indicating a wish to double punish in this scenario.

Speaker 9 (01:41:20):

Okay. Justice Thomas. Justice Alito.

Justice Alito (01:41:23):

Well, just out of curiosity, suppose there is a person who is committing a crime and this person is very well versed in the statutory, in the criminal code and in our double jeopardy jurisprudence. This person commits an offense that has two elements, a and B and the maximum punishment for that offense is five years. The person says, "Wow. If I get caught and convicted, I don't want to go to jail for five years, but I know that if I commit two other elements, C and D, and the maximum penalty for that offense is only one year. Let me go ahead and commit the greater offense." Does that make any sense?

Larson (01:42:12):

Such a skilled defendant may engage in that conduct, Your Honor. There are ample safeguards in place to protect against any injustice. In that scenario, the person would be tried and convicted of both offenses, and if they are in fact the same and there's no clear indication to pile them on top of each other, he would be subject to punishment under either one. If the government or the court feels that they need to use the statute with the higher maximum, he'll be punished under that one. That's the situation here, Your Honors. If Mr. Barrett is ultimately punished under (c) instead of (j), he still faces up to life in prison, and the government has pointed to no scenario in which someone punished under (c) rather under (j) gets off or gets a light sentence.

Justice Alito (01:42:55):

Well, what I'm getting at is that under your view a defendant who commits murder while violating 924(c) can be sentenced to less time than a defendant who does not commit murder while violating 924. Am I right?

Larson (01:43:08):

Yes, Your Honor. It can be, I think is the key phraseology there. In addition to the fact that amicus cited no actual example of this ever happening, there's also the safeguard in addition to what I've discussed of appellate review. If some crazy judge says, "I'm giving you a day in jail for killing somebody," you can bet there's going to be a government appeal and a reviewing court is going to most likely find that unreasonable. There are multiple safeguards here. No injustice is going to result from our reading of the statute, which is the only reasonable reading given the text here.

Speaker 9 (01:43:39):

Justice Sotomayor.

Justice Sotomayor (01:43:41):

There is another situation in which we found that the sentences should be running consecutively and that's Garrett, and Garrett the RICO versus the substantive crime. Correct? Distinguish that case.

Larson (01:43:58):

Garrett could not-

Justice Sotomayor (01:43:58):

We looked at there was no language there, but it was the nature of the statute.

Larson (01:44:03):

Garrett could not be more unlike the scenario here, Your Honor. The two crimes, there was literally one on one day an importation of marijuana on one day. The other crime was a years-long multi-state spanning all of the coasts of the country continuing criminal enterprise. This court looked at the statutes, said, "Congress could not possibly have intended that if you import marijuana on one day, you then get to get out of jail free card for the next several years of your continuing criminal enterprise." In the court's decision rather discussion of the situation there, it contrasted that scenario to the one here, a single course of conduct. Here (j) requires that the shooting occur in the course of a violation of (j), and that's what happened. Mr. Door shot Mr. DeFalo within seconds or minutes of robbing his compatriots. This was not something spanning years or months. This is one course of action, the classically simple conclusion-

Justice Sotomayor (01:45:02):

Going back to Justice Alito's question about does it make any sense that the lesser punished crime Congress would want that one to control? That wasn't the case when the statute was passed, correct?

Larson (01:45:20):

Absolutely right.

Justice Sotomayor (01:45:21):

We have to discern intent at the time the statute was passed, correct?

Larson (01:45:26):

Yes. I do think it's fair as Justice Alito indicated to look at what's happened since then. But looking at that only helps our position, because congress has had over 30 years to change this scenario if it felt like something unjust.

Justice Sotomayor (01:45:37):

They did it in one situation.

Larson (01:45:39):

That's right. For armor-piercing ammunition, not the case here. Correct.

Justice Sotomayor (01:45:44):

Justice Kagan. Justice Gorsuch.

Justice Gorsuch (01:45:47):

I got a question from a totally different direction, Mr. Larson. Everybody's litigated on the premise that Congress can double punish for greater and lesser included offenses if it speaks clearly, but it must speak clearly. Where does that presumption come from?

Larson (01:46:06):

It comes from a couple of places Your Honor's talked about this in the Whalen decision. Number one, separation of powers. Courts don't write laws punishing criminal conduct. They don't set the penalties. Congress does that. That function by the Constitution is committed to Congress, so courts are very-

Justice Gorsuch (01:46:25):

Well, we normally interpret statutes without a thumb on the scale. Everybody ask us to put a thumb on the scale, where does that thumb come from?

Larson (01:46:32):

Yes, the presumption, because we're afraid of violating the separation of powers and we're also afraid-

Justice Gorsuch (01:46:38):

Is that lenity? Are you just afraid to utter the word?

Larson (01:46:41):

No. I'm a great fan of lenity, and I believe Your Honor is too, maybe not everyone in the room is a fan of lenity, but I am. But putting lenity to the side-

Justice Gorsuch (01:46:49):

It has to come from somewhere.

Larson (01:46:51):

Yes, it comes from the historical practice that historically speaking, legislatures don't double punish one crime. Also, constitutionally, it's the legislature that decides on the punishment not a court. A court before it veers out of its lane and says, "You have to double punish this person," there better be something very clear from Congress indicating that that's allowed. Because as the court said in Whalen, if we get this wrong, we violate not only the separation of powers principle, but we also trench especially harshly on the individual freedom aspects that are protected by the double jeopardy clause.

Justice Gorsuch (01:47:26):

This court has sometimes said the presumption, but in other cases it's said there is no double jeopardy prohibits two punishments for one offense and that includes greater and lesser. I'm thinking of Pierce. I'm thinking of Shular. How do we reconcile like Hunter on the one hand in those cases on the other?

Larson (01:47:43):

Well, Hunter was just Missouri's version of 924(c). If you commit a crime with a gun, you get a punishment for the gun in addition for the underlying crime. Nothing in Hunter speaks to the situation here.

Justice Gorsuch (01:47:55):

Well, I'm wondering, Hunter was issued during the Grady era when we treated Blockburger as a tool of statutory interpretation and therefore, a presumption if you will, but Dixon overruled Grady. I wonder, is Hunter still good law or is it Shular and Pierce? Let me add onto that. The possibility of dual punishments for greater and lesser included offenses really wasn't possible for much of our history, because you didn't have jointer of criminal offenses. Necessarily, once you try one, you're done. You try the greater and you're done and there is no opportunity for double punishment. I'm just wondering what you make of all of that.

Larson (01:48:39):

Well, historically speaking also, Your Honor, most felonies resulted in losing life. This question wasn't as present as it is nowadays, but the court has consistently adhered to the Blockburger rule for over 100 years. Even in Blockburger it cited a case from 1911 citing a Massachusetts case from the 19th century. The court has had many opportunities. It's observed in Rutledge and other cases to abandon this rule and it hasn't, and it's just a presumption. We acknowledge that. The presumption can be overcome, but that's what's missing here, Your Honor.

Justice Gorsuch (01:49:11):

I'm wondering why can the presumption be overcome?

Larson (01:49:14):

Because the court has decided that despite the double-

Justice Gorsuch (01:49:17):

There's double jeopardy, which the clause say you can't be punished twice for one offense. We have one offense here.

Larson (01:49:25):

That's the funny thing that I also discovered in this case, Your Honor. Despite those plain words of the double jeopardy clause, the court has consistently understood that to be a check on courts and not on the legislature. People's punishments-

Justice Gorsuch (01:49:37):

Thank you, Mr. Larson.

Larson (01:49:38):

… can be whatever a congress says they are.

Speaker 9 (01:49:40):

Justice Kavanaugh

Justice Kavanaugh (01:49:42):

Well, the Second Circuit here, I feel unfortunate position there in because they're trying to interpret Laura. You talk about 31 years, they're interpreting Laura and they say after Laura, where we said that Congress specifically chose to locate 924(j) outside 924(c), they're separated by several unrelated subsections. We said this reinforces the conclusion the Second Circuit said that Congress intended to create different crimes. Subject to different penalty schemes, 924(c) focusing on the firearm, 924(j) focusing on the death caused by the use of firearm. Again, that was discussed at oral argument in law. In fact, the government cautioned us against not answering this question in the way that the Second Circuit ended up saying, and now we're back. Laura's got to be part of your analysis here. How do you explain Laura?

Larson (01:50:48):

Laura favors us, Your Honor.

Justice Kavanaugh (01:50:50):

Why?

Larson (01:50:51):

Because it's odd that the Second Circuit said we're compelled now by Laura to reach this conclusion because-

Justice Kavanaugh (01:50:59):

Do you think that's odd? Okay.

Larson (01:51:00):

I think it's odd and this is why, Your Honor.

Justice Kavanaugh (01:51:01):

I don't think it's that odd, but anyway.

Larson (01:51:03):

The reason I think it's odd, Your Honor, is because this court said that our position in this case aligns with Your Honor's ruling in Laura. This court said, "(j) does not incorporate these penalties. Congress wrote (j) to punish a killing. The penalties had set out were sufficient in themselves. It didn't want to replicate, it didn't want to pile on." Although the precise question here was reserved, Your Honor, whether these two crimes are the same for double jeopardy purposes, there is no dispute among the parties that they are the same. The only question is there a clear indication? Is there special authorization to use the phrase in Whalen from Congress to double punish the one fatal shooting here, and there simply isn't. Amicus has not pointed to anything saying so.

Justice Kavanaugh (01:51:49):

Well, I think they've pointed to in 1994, when congress comes in with (j), they already know that 924(c)( 1)(D)(ii) already says that any new punishment will be consecutive. If Congress knows that in '94, they know they don't have to put something in to make clear that it's double-punished. It's already by definition going to be double-punished given what that already says. Correct?

Larson (01:52:23):

No, Your Honor, respectfully. (c)(1)(D)(ii) as Justice Sotomayor was describing, is an instruction on how a sentence should run if imposed under (c). That's the question here. If we assume-

Justice Kavanaugh (01:52:33):

You said the question was an intent by Congress to double-punish?

Larson (01:52:37):

That's correct. So did Congress want a sentence to be imposed under (c), under (j) for one crime. That's the question to which (c)(1)(D)(ii) says nothing. Finally, Your Honor, if we presuppose (c)(1)(D)(ii) applies here, we presuppose the answer to the question.

Justice Kavanaugh (01:52:54):

Last, the Second Circuit also noted that the District Judge said he was going to do a 50-year sentence regardless here. The Second Circuit can deal with that, I suppose even if you prevail?

Larson (01:53:12):

Yes, and just to be clear, Laura came up while we were litigating Barrett in the court below, so we filed supplemental briefing based on Laura and the District Judge rejected our argument given Circuit law at the time, but he specifically told Mr. Barrett, "If I'm wrong, you'll be back here for a new sentence."

Justice Kavanaugh (01:53:30):

That's why the Second Circuit didn't find it [inaudible 01:53:33]?

Larson (01:53:33):

We don't know what the judge will do on remand. We don't.

Justice Kavanaugh (01:53:35):

Yeah. Thank you

Speaker 9 (01:53:37):

Justice Barrett. Justice Jackson.

Justice Barrett (01:53:39):

Can I just follow up on the Laura clarification here? I guess Justice Kavanaugh a point about the Second Circuit believing that Laura compelled its view, but I guess as I understand your argument, you are saying that Laura signaled that Congress intended (j)'s punishment to supplant (c), not supplement (c). That the fact that there was a separate punishment scheme in (j), but the elements were the same because they were overlapping meant that where the (j) scenario occurred with the additional element Congress meant for it to be the punishment scheme that you used in that scenario?

Larson (01:54:30):

One punishment for one crime, Your Honor, yes. The fact that there were different statutes here, (c) versus (j), that was the feature of all of Your Honor's cases. That was the situation in Wayland. That was the situation in Rutledge. They were different statutes. They had different penalties, didn't matter. They were the same offense for double jeopardy purposes, and because there wasn't a clear indication to double punish, this court said, "No double punishment."

Justice Barrett (01:54:52):

Going to justice Alito's questions about the Peel scenario, I guess I didn't understand that odd circumstance to be presented on these facts because I thought that (j) allowed for additional punishment. In other words that we didn't have a situation in which (j) was capping the punishment lower than (c) would allow. Is that right?

Larson (01:55:16):

That is correct. The only difference is in this particular case under (c), the minimum is five years. No one thinks Mr. Barrett is getting five years.

Justice Barrett (01:55:24):

That's because the minimum is not really at issue in a case like this when you're talking about death. What we care about is the maximum in a situation in which the harms and the offense is so egregious, correct?

Larson (01:55:38):

That's right, Your Honor, and justice can be done under either one of the statutes here. The simple point is that convictions cannot be entered under both statutes.

Justice Barrett (01:55:47):

Doesn't it have to be done… Aren't sentencing judges also bound by other statutory provisions that require them to provide sentences that are sufficient but not greater than necessary that avoid unwarranted sentencing disparities? So it's not even realistic, I think given the sentencing judge's other obligations that you would be in a situation, in which a sentencing judge would sentence someone who had used a gun to a fatal result less than someone who had just used a gun, correct?

Larson (01:56:19):

I agree, Your Honor, and that's why Amicus has cited not even one example of that ever happening.

Justice Barrett (01:56:23):

Thank you.

Speaker 9 (01:56:25):

Thank you, Counsel. Ms. Brown.

Brown (01:56:44):

Thank you, Mr. Chief Justice, and may it please the court. Section 924(c)(1)(A) is a lesser included offense of 924(j), which triggers the Blockburger presumption against cumulative punishments. Nothing in the statutory text structure or history rebuts that presumption. The text points in the opposite direction. Congress expressly authorized cumulative punishments for 924(c) and its predicate, but when Congress enacted 924(j) and made 924(c) the predicate, it omitted that language. That different text indicates a different intent.

(01:57:14)
The Court of Appeals focused on 924(c)'s mandatory minimum and consecutive sentencing provisions, but those provisions address the proper sentence after conviction, not whether a defendant can be convicted under 924(c) and another provision. Amicus also relies on structural arguments that 924(c) and (j) involve different harms subsections and penalties. But 924(c)'s predicate offenses share those features, yet Congress specifically authorized cumulative punishments there, and Congress's history with 924(c) confirms that it understood the clarity this court has required to authorize cumulative punishments, because there's no clear indication Congress did so here the Blockburger presumption controls. I welcome the court's questions.

Justice Alito (01:57:54):

Are you approaching the point where you're going to require a clear statement rule?

Brown (01:57:59):

No, Your Honor, and we resisted that implication in our reply brief as well. We don't think that this is a requirement that there has to be a language in the text of the statute. We agree with the court's decision in Garrett where the court held looking at the statutory text along with the structure, the context, the history that cumulative punishment had been authorized, and we think that that same analysis should apply in every case. It is a statutory interpretation question and the court should take account of the full toolkit for statutory interpretation in that instance.

Justice Barrett (01:58:31):

Does your position differ from Barrett's in any meaningful way?

Brown (01:58:37):

I think that to the extent that Barrett was suggesting that there might be some clear statement rule and relying on the sovereign immunity decisions, which do I think require some kind of language specifically in the statutory text, we do resist that. There is a part of petitioner's opening brief that discusses lenity. We don't think that the rule of lenity analysis should be applied here either. But as far as the construction of the statutory text itself, I think we're aligned.

Justice Jackson (01:59:05):

Can you take me through the history of how the government got here? Because in the oral argument in Laura, it was explained that if the court disagrees with us on this and the court did disagree, it should say that these are separate offenses for purposes of Blockburger because for the reasons I was just noting, it really makes no sense to have one offense. That's the government's words, and I specifically asked then later how we should write the opinion to avoid this problem. The government lawyer very succinctly and clearly said, "The court should also clear that because of the intertwined relationship to the two questions, these are separate offenses for Blockburger." Now, that was ultimately left open. The Second Circuit, I think reasonably debatably, but reasonably read Laura as supporting what the government was saying we should have made clear. What happened then?

Brown (02:00:02):

Our argument in Laura was essentially that the statutory construction question that the court was facing there, whether 924(g) incorporates all of 924(c) including its penalties. We thought that that was intertwined with the double jeopardy question, and that those two questions should rise and fall together. We also thought that one reason that our interpretation was the better one was that otherwise you would have these implausible results where a 924(j) offense could receive a lower punishment than 924(c). I think that the court in Laura rejected two of those points. It rejected the idea that the statutory analysis in Laura rises and falls with the double jeopardy question. The court expressly said that its analysis there was consistent with or could be consistent with the government's longstanding double jeopardy position.

(02:00:49)
Then the court in Laura went on to explain that it didn't find the possibility of 924(j) having the ability to be sentenced at a lower punishment than 924(c) implausible, because instead of applying these mandatory minimums or this consecutive sentence mandate, Congress in 924(j) chose a different approach to sentencing. That approach is the standard approach that Congress uses for murder and manslaughter offenses where instead of constraining judicial discretion through the use of minimums or consecutive sentence mandates, Congress goes in a different direction. It authorizes sentences up to the death penalty for murder any term of years life imprisonment. The same penalties in Section 11, and 12 that apply to manslaughter offenses in other places as well.

(02:01:35)
The court expressly said in Laura as well that it viewed there to be indications from the statutory text that Congress intended for 924(j) to take account of the seriousness of the offense without incorporating the penalties from Subsection C. Because of that, I think we decided after looking through and analyzing the decision in Laura, that our interpretation for the double jeopardy purposes was still the better interpretation of the statute, because I think the court had rejected the premises that we had built into the analysis earlier.

Justice Jackson (02:02:05):

Okay. That's helpful. In overcoming the presumption though, can you look at, and this is Justice Alito's question from before, whether Congress has specified that they should not be concurrent?

Justice Kavanaugh (02:02:18):

I think that that could be some indication-

Justice Jackson (02:02:21):

In other words-

Justice Kavanaugh (02:02:21):

… in certain circumstances… Sure.

Justice Jackson (02:02:24):

It's said in both provisions-

Brown (02:02:26):

That there are consecutive sentences? I do think that a consecutive sentence provision is, as my friend said, an indication of how the offense should be sentenced, and not necessarily an authorization for the punishment in the first instance. I think the best way to see the distinction between those 2 is to compare the language in 924(c)(1)(A) that does authorize cumulative punishments with the 924(c)(1)(D)(ii) language. The language that we think is the authorizing language is on page 1A of our appendix, and it says that, "The punishment should be in addition to the punishment provided for such crime of violence or drug trafficking crime."

Justice Jackson (02:03:00):

That's good enough?

Brown (02:03:02):

That's the authorization language that we see here. That is certainly good enough. That's similar language to what Congress used in (c)(v). In fact, it was broader in (c)(v) and said that punishment should be in addition-

Justice Jackson (02:03:11):

If that's good enough, couldn't Congress, and I'm sorry to prolong this, but if that's good enough, couldn't Congress in '94 when they're putting (j) in think, "Well, we don't have to put in an addition because it already makes clear in 924(c)(1)(D)(ii) that no term shall run concurrently," and that just seems as a matter of English language. Those two things seem to me the same. If you've conceded that the first, in addition to would make it multiple offenses. In Congress in '94, yeah, they could have gone through the exercise, but I think they read (c)(1)(D)(ii) it's like, "Yeah. Of course. No term of imprisonment notwithstanding any other provision of law."

Brown (02:03:57):

Again, I think that (c)(1)(D)(ii) is focused on the different

Ms. Brown (02:04:00):

… different question, and that's the question of when you have a sentence, how is it structured with other sentences?

Speaker 10 (02:04:04):

But you've already conceded … Conceded. I don't want to use, but in addition language, the punishment in addition would be good enough.

Ms. Brown (02:04:10):

The punishment in addition would be good enough if it were specific to the offenses at issue here. But in (c)(1)(a), it's only authorizing cumulative punishment for the (c)(1)(a) offense and it's predicate

Justice Jackson (02:04:21):

Is that because you're reading punishment to mean conviction?

Ms. Brown (02:04:25):

Punishment we think does include both the conviction and the sentence, and that's consistent with what this court held in Ball. In that case, the sentences themselves were concurrent sentences. And so the government had argued that it was a harmless error for double jeopardy purposes because you were really only serving the same time you would serve otherwise. The court in Ball said that that is incorrect for purposes of double jeopardy. The conviction is part of the punishment, and that is [inaudible 02:04:49]-

Justice Jackson (02:04:48):

Okay, we don't have the word punishment in the (d) subsection, right?

Ms. Brown (02:04:52):

That's correct. It's-

Justice Jackson (02:04:53):

In the (d) subsection, we're talking about the sentence, "No term of imprisonment shall be to run concurrently." And you only get to the sentence after you have the punishment/conviction.

Ms. Brown (02:05:06):

Correct. And so that's why we see the authorizing language in (c)(1)(a) as doing the work of authorizing cumulative punishments in the specific instance, in which the offense is the (c)(1)(a) offense and its predicate offense.

Justice Jackson (02:05:17):

And you're saying we would've needed that kind of language in the (j) scenario in order to arrive at the same place?

Ms. Brown (02:05:26):

Yes, that's correct. And if you thought that the (c)(1)(d)(2) language were sufficient to authorize cumulative punishments on its own, then that would mean that the language I was just pointing you to in (c)(1)(a) would be superfluous, and that's a superfluity that would've existed at the time congress was enacting the statute as well.

Speaker 10 (02:05:39):

Right. But, I mean, superfluity is usually defeated by notwithstanding any other provision of law. But I take you, I understand your argument on that, and I understand Justice Jackson's point, I think the 2nd Circuit was quite reasonable in what it did in the wake of Lora. Let me ask you another question, does this matter from the government's perspective in terms of sentences that'll actually be imposed in the real world, in cases of this nature?

Ms. Brown (02:06:01):

So I think likely not in practice, because-

Speaker 10 (02:06:04):

That's why I assume you're where you are.

Ms. Brown (02:06:05):

The government is going to have the ability to dismiss convictions or dismiss the guilty verdicts that it gets on certain counts before sentencing happens. And so, it can have the ability to choose, I think, which of the counts the sentence is imposed under. And that might take into account the sentencing exposure that we think is going to occur under either (j) or (c), and we can choose which one we think is the more appropriate under the circumstances.

Speaker 11 (02:06:26):

Do you think that there cumulative punishments authorized for both (j) and the predicate offense?

Ms. Brown (02:06:35):

We don't, no, because there's no language in 924(j) that authorizes those cumulative punishments for the predicate offense of (c) or (c)'s own predicate. It's like [inaudible 02:06:44].

Speaker 11 (02:06:44):

I really meant like (c)'s own predicate.

Ms. Brown (02:06:46):

Correct, yes. There's-

Speaker 11 (02:06:47):

So you think your position is consistent all the way through, we're going to make you have language, and because there's no language for the original predicate offense, let's say a robbery or something, that cumulative punishment is not authorized?

Ms. Brown (02:07:04):

We think that that is the necessary implication of the language in the text of the statute here. If Congress had put (j) into subsection (c), then of course that language authorizing punishment in addition to the cumulative offense would apply to that part of the subsection as well. But because it put it in its own subsection, that introductory language just doesn't apply and it is also a lesser included offense. So the same analysis that you have here would apply there as well.

Speaker 11 (02:07:26):

Okay.

Ms. Brown (02:07:30):

I did want to address just a couple of the kind of results-based or anomalies that Amicus has suggested might occur under our interpretation, and especially with respect to Justice Thomas's earlier question about the machine gun hypothetical. We believe that under that hypothetical, these would be two separate offenses for purposes of Blockburger, because then both would have an element that the other would not, and Congress can indicate an intent to authorize cumulative punishments by adding elements to the two offenses, that would make them separate offenses for purposes of Blockburger. So we don't think that the analysis here would apply in the same way to 924(c)(1)(b) offenses in that same way.

Chief Justice Roberts (02:08:12):

Thank you, Justice Thomas? Justice Alito? Justice [inaudible 02:08:17]? Justice Kagan? Justice Gorsuch?

Justice Gorsuch (02:08:20):

You know exactly what I'm going to ask you. The government acknowledges that there's a presumption that we're not doing our normal statutory interpretation here. There's a presumption against two punishments for one double jeopardy offense. Where does that come from?

Ms. Brown (02:08:39):

I think it is largely a factor of the courts presuming that Congress generally doesn't intend to authorize cumulative punishments for the same offense under Blockburger.

Justice Gorsuch (02:08:48):

Why? That's just repeating the words back to me. Why do we presume that?

Ms. Brown (02:08:54):

I think, originally, there were some early cases that did suggest that under the double jeopardy clause, the double jeopardy clause applied to cumulative punishments as well. And so there was this form of constitutional avoidance. In later cases, the court made very clear that the constitutional analysis and the statutory analysis collapse into one another as long as Congress has in fact authorized it, then that's fine, and we think that that's sufficient.

Justice Gorsuch (02:09:17):

All right, let me stop you there, and just say I think you've got two possible answers. One is Lenity, which is rooted in the separation of powers and the presumption of freedom, of liberty. And I took that to be Mr. Larson's answers after a while.

(02:09:34)
The other answers might come from the double jeopardy clause itself, which, after all, says, "You cannot be punished twice for the same offense." In which case it's not a presumption, it's the law. Now I know we said it's a presumption in Hunter, but Hunter was back when we were treating Blockburger not as authoritative under the double jeopardy clause, but as a tool of statutory interpretation. We've rejected that since, in Dixon, we overruled Grady. And since then we've said in Shiro and Pierce, "You can't have two punishments for one crime, two sets of punishments." Now, of course a punishment might include a term of imprisonment and supervised, yada yada, but you can't have two sets of punishments for one crime. So we've spoken out of both sides of our mouth on this. Would you object to a footnote at least acknowledging we've spoken out of both sides of our mouth on this, and it's applying the presumption anyway?

Ms. Brown (02:10:30):

So we certainly don't object to applying the presumption, as the court has done in all of these cases. I would push back a little on the idea that this is compelled by the double jeopardy clause itself.

Justice Gorsuch (02:10:45):

Or at least a precedence. I mean, what did Pierce and Shiro say it?

Ms. Brown (02:10:47):

Sure. I think if you were going back to original principles in the double jeopardy clause, it actually-

Justice Gorsuch (02:10:52):

You might be shocked to hear, I'm interested in that.

Ms. Brown (02:10:54):

I am somewhat unsurprised. But it does refer to being twice put in jeopardy of life or limb, not-

Justice Gorsuch (02:11:03):

For the same offense.

Ms. Brown (02:11:04):

Yes, for the same offense. But Congress, of course, can define offenses however it chooses to do so. It can also define punishments, so-

Justice Gorsuch (02:11:08):

But once you've got one offense, you get one set of punishments, is natural conclusion from that text. And we have said that twice every [inaudible 02:11:16].

Ms. Brown (02:11:15):

I think what Justice Scalia said when he was looking at the original meaning of this is that in fact the double jeopardy clause should apply to successive prosecutions but not to cumulative punishment.

Justice Gorsuch (02:11:25):

I agree with that, right? And his point was, well, there might be multiple punishments for one offense, and that's fine. Of course fines, imprisonment, supervisory. Ah, but what is a successive prosecution? Through most of our history, you couldn't have a successive prosecution. There was no jointer of offenses. But now there is, and we use Blockburger to tease it out. And here we have, as you concede, one offense. One offense. Forget about (j) and (c), there's one offense. Why isn't the natural implication, again, in the last, I'll leave you alone after this, I promise, the natural implication in our precedents that say you get one set of punishments? The obvious implication, or at least we should acknowledge the tension between our cases on this, which speak out of both sides of their mouth.

Ms. Brown (02:12:16):

So again, I don't think we would object to any kind of footnote that suggests something like that, that could be revisited in future cases in which the issue is briefed. But we would encourage the court to continue to adhere to the precedents that do apply the Blockburger presumption, and that do acknowledge that Congress has the authority to punish in this way.

Justice Gorsuch (02:12:38):

Thank you, Ms. Brown.

Chief Justice Roberts (02:12:38):

Mr. Kavanaugh? Justice Barrett? Justice Jackson?

Ms. Brown (02:12:38):

Thank you.

Chief Justice Roberts (02:12:38):

Thank you, Counsel. Mr. Mr. MacLeod?

Mr. MacLeod (02:12:44):

Thank you Mr. Chief Justice, and made it please the court. Petitioner and his crew used guns to rob Gamar DeFala. That robbery violated Section 924(c). When Mr. DeFala resisted, one of those guns was used to murder him. That murder violated Section 924( j). The 2nd Circuit correctly held that Congress intended Petitioner's separate violations, to be punished separately, subject to the sentencing schemes of both statutes, not one or the other. Text, structure, and history support that conclusion. Petitioner and the government disagree. They say that if Congress wanted to authorize cumulative punishment, Blockburger required to speak more clearly. But this court has already rejected attempts to convert Blockburger from a rule of thumb into a conclusive presumption. Precedent also shows that there's no one-size-fits-all approach Congress must follow in this area. Sometimes it's true that Congress says punishment under one statute is in addition to punishment under another statute. But other times, like in Garrett, Congress makes its intent clear through statutory structure and purpose creating separate offenses targeting separate evils.

(02:13:49)
Here, Section 924(c) consecutive sentence mandate makes clear that Congress wanted that provision to impose additional punishment on top of the punishment a defendant received for any other offense. And after Lora, sections 924(c) and 924(j) are undoubtedly different offenses. On top of that, this court typically assumes that Congress acts rationally. But Petitioner's and the government's interpretation means that the way to avoid Section 924(c)'s otherwise unavoidable mandatory penalties is to kill someone. Congress did not intend that irrational result, and the Constitution doesn't require it. This court should interpret Section 924(c) and 924(j) to complement each other, not to conflict and affirm the judgment below. I welcome the court's questions.

Speaker 12 (02:14:35):

Wouldn't you have an easier argument for 924(c)(1)(a)(2) and (3) than you would for (1)?

Mr. MacLeod (02:14:46):

I think that's right. I heard my friends on the other side concede that they now view those as establishing different offenses that would not be subject to the double jeopardy bar. I think that with respect to the statutory text, the argument is fairly similar. It is true that there is use of the in addition to language in (c)(1), but as we pointed out in our brief, this is not a magic words requirement. I heard Petitioner's Counsel suggest that Congress had made it crystal clear in (c)(1)(a) by using the words "in addition to." But the standard is not whether Congress was crystal clear, it's whether it was clear. And I think it is clear from the structure and from the purpose and the history of these provisions that Congress viewed (c) as imposing additional mandatory punishment on top of any other punishment that a defendant received for a relevant offense.

Justice Jackson (02:15:36):

Isn't the question here, whether the defendant can receive additional punishment under (j)? I mean fine, (c) might have been intended to be stacked, but I thought the issue before us today is whether you can punish under (j), given the Blockburger test and the relationship between (c) and (j).

Mr. MacLeod (02:15:57):

So Justice Jackson, I have three responses to that question. The first is when the court has looked at this double jeopardy question in the past, it is not typically asked whether there was an authorization for a cumulative conviction. So in a case like Whalen, which is a very good case for Petitioner, the court asked whether there was an authorization for a cumulative sentence, and that's exactly the same way that Petitioner phrased the question presented in his petition. He said, "Can he get two sentences for his two convictions?"

Justice Jackson (02:16:23):

Isn't that just sort of language differences? I mean there is a fundamental understanding that the double jeopardy clause is about the punishments, the United States says punishment, I say conviction, versus the sentence?

Mr. MacLeod (02:16:38):

Well, I think that the sentence is a form of punishment. It is, in fact, probably the most critical form of punishment [inaudible 02:16:44].

Justice Jackson (02:16:43):

I understand, but you're not raising a double jeopardy problem when you say that my sentence has been run concurrently or consecutively. You're talking about something different than the core constitutional mandate that you cannot be punished/convicted for the same offense.

Mr. MacLeod (02:17:04):

And I think the core mandate goes to the question of whether there is an authorization for punishment. I think (d)(2) is such an authorization because it speaks to the sentence, I think the Petitioner's argument on (d)(2) is just another variation in his magic words requirement. He is saying that not only must Congress say, "Punishment is in addition to," but that it must say, "A conviction is an addition to," and I don't see any basis for that requirement in this court's precedent. Last thing I would say on this point-

Speaker 10 (02:17:30):

Well you said you had three responses. I wanted to make sure you got them all out.

Mr. MacLeod (02:17:34):

The third response is even if you think that (c)(1)(d)(2) is not dispositive on this question, it is certainly a relevant piece of data about Congress's intent. It shows that at least with respect to a large subset of the (c) offenders, Congress thought that there would be additional unavoidable punishment, and there's no reason to think that Congress-

Justice Jackson (02:17:54):

Punish additional unavoidable punishment relative to the predicate offense in (c).

Mr. MacLeod (02:17:59):

No, Your Honor. In fact, Congress amended (d)(2) to specifically say that it refers to any other offense, not just the predicate, in response to this court's decision in Simpson and Busick. So Congress was-

Justice Jackson (02:18:11):

Any other offense. And the question here is whether this is the same offense.

Mr. MacLeod (02:18:14):

And I think that's the relevance of Lora, Your Honor, because Lora shows Congress intended these provisions not simply to create a supercharged version of (c), but instead for (j) to stand on its own, to be a distinct offense that's subject to its own distinct penalty scheme.

(02:18:28)
And so the best way I think to reconcile what Congress was trying to do is, as Justice Kavanaugh referenced earlier, Congress, when it enacted (j), understood that it already had the consecutive sentence mandate on the books. It had enforced that multiple times, and, in fact, reinforced it when this court improperly narrowed (c) in Simpson and Busick. And so from Congress's perspective, I think it would've been clearer that anyone who receives that (j) conviction would get the (j) penalties and the unavoidable (c) penalties. There are really two possibilities on the table here. One is Congress enacted (j), but it intended for (c) to do most of the work. I think that's what I heard my friend Ms. Brown suggest is going to be the government's approach when these anomalies arise. It will just focus on (c). But that raises the question of why would Congress go to the trouble to enact (j) at all?

Justice Jackson (02:19:20):

Because it was trying to bring the death penalty into play.

Mr. MacLeod (02:19:25):

And I think, Justice Jackson, that answer would be plausible if all Congress had done was create ( j)(1). But, of course, Congress didn't stop at (j)(1). It enacted the manslaughter provisions in (j)(2). And with respect to (j)(2), the anomalies are truly anomalous.

Justice Jackson (02:19:40):

I understand, but Ms. Brown says that there was already a pre-existing set of punishments and circumstances for murder and manslaughter. And Congress, I would think, could be rationally understood to be trying to import those in a situation in which a person had committed the crime, and the crime is the (c) set of elements, and murder or manslaughter resulted.

Mr. MacLeod (02:20:05):

I actually agree with that explanation. I think what Congress-

Justice Jackson (02:20:08):

Then why would you get two convictions under those circumstances?

Mr. MacLeod (02:20:13):

Because Congress created that (j) offense, the separate offense in a way that is independent of (c).

Justice Jackson (02:20:18):

That just begs the question. I'm suggesting it's not a separate offense. I'm saying what Congress was doing with (j) is just making available the penalties that exist when with respect to the one offense, a murder or manslaughter happens, a death occurs.

Mr. MacLeod (02:20:35):

So then, justice Jackson, I think I go back to the anomalies that I raised with respect to (j)(2), which is, you have a scenario where the maximum that is authorized under (j)(2) for the manslaughter is 15 years or 8 years, whereas the minimum that would be required under (c) would be 5 years currently, but it could be much higher than that.

(02:20:56)
And then, of course, with respect to the other (c) offenses, the machine gun, et cetera, you would have a much more significant anomaly. Now, I have heard Petitioner and the Government both to concede that those are separate offenses, so I take the point that that anomaly is not quite as powerful. But I think that, ultimately, it shows that Congress wanted these offenses to punish the full gravity of the harm committed by someone who carries a gun during a violent crime, and then uses that gun to commit a killing.

(02:21:24)
And I want to be clear, the consequence of this position is not that every single defendant will receive cumulative punishment. I agree that it is ultimately up to the sentencing court to decide what the appropriate punishment is. And there may be cases where a cumulative sentence is not appropriate. The question is, did Congress and the Constitution bar district courts from determining that in some circumstances, cumulative punishment was warranted? And I think based on the text, structure, and history for all the reasons that we said, there is no evidence that Congress wanted that bar.

Speaker 10 (02:21:55):

What do you say to the government's point that this really isn't going to prevent them or prevent a district judge who wants to sentence heavily from sentencing heavily in cases? And there's a killing, So presumably it's going to be sentenced heavily, one would usually suspect.

Mr. MacLeod (02:22:12):

I think that that is right as a factual matter. I guess I would push back and say the question is not, can district courts and prosecutors figure out a workaround? The question is, what did Congress intend? And when you look at the provisions-

Speaker 10 (02:22:24):

I agree with that on a legal analysis. You've looked at this carefully, how this would play out, and it seems like a district judge, like the district judge in this case, seems to at least have an idea of 50 years in mind, nothing we're talking about here is really going to affect any of that.

Mr. MacLeod (02:22:43):

I think that's right, and I don't have any basis to be clear to question what Ms. Brown said about the practical consequences going forward. I do think this is something courts can work out. I will note, Petitioner pointed out, we didn't cite an example of one of these anomalies. I think the explanation for that is that prior to Lora, the government had won the Lora argument in every court of appeals except the 11th Circuit, which actually agrees with the position I'm advocating on double jeopardy. So you never had a situation where someone was not getting the (c) penalties along with the (j) penalties because you could merge the two offenses.

Speaker 10 (02:23:17):

Right. So the 31 years reference is really just not accurate, in your view? Is that what you're saying?

Mr. MacLeod (02:23:22):

Exactly, Your Honor.

Speaker 10 (02:23:22):

And so all that really matters is post-Lora in the 2nd Circuit. Yeah. Okay.

Mr. MacLeod (02:23:27):

Exactly. But again, I am not disputing that it is possible under the government's position to construct an appropriate sentence. My point is I don't think that's actually how Congress wanted the statutory scheme to operate. And I read this court's precedents to suggest that is the operative question, what was Congress's intent? Not simply, what can the government do operationally on that?

Justice Jackson (02:23:47):

Can we take into account 35-53(a) when assessing that? I mean Congress was obviously legislating against the backdrop of a system in which it had already told district judges, sentencing judges to sentence proportionally based on what happens in terms of the facts, et cetera. So in that world, the anomalies that you're identifying, maybe Congress wasn't worried about because it had already instructed the court to make sure that the penalties in a situation like this are higher.

Mr. MacLeod (02:24:14):

I think that would be plausible if all Congress had done was adopt (j)(1), the murder provision, because those are the sort of anomalies that a district court could work out. If you have a situation like the (j)(2) penalties, where you have a floor that is very low, and a ceiling under the other statute that's very high, that is not something a district court could really reconcile. But I take the point that 35-53(a) certainly was operating in the background, and the 2nd Circuit noted that in the ordinary course, of course a district court is going to take account of the (c) penalty in fashioning the (j) remedy. I think that's certainly appropriate for the court to do.

(02:24:58)
I'd like to turn just briefly to the precedent and the question of the status of Blockburger. So Justice Gorsuch, I actually read this court's cases to suggest that Blockburger is not a substantive canon, it is more of a linguistic canon, to borrow a phrase from Justice Barrett. It is a tool of statutory construction that the court applies to determine Congress's intent, but it is ultimately just a proxy for Congress's intent. And so, Blockburger yields in the face of clear evidence of a congressional intent to authorize cumulative punishment.

Justice Gorsuch (02:25:32):

I still think, though, you need some account why we have that canon in this context, but no others?

Mr. MacLeod (02:25:38):

I agree. I think-

Justice Gorsuch (02:25:39):

[inaudible 02:25:39] many others, I mean there has to be an account, right? Why?

Mr. MacLeod (02:25:43):

I agree. I think that that is an area of this court's double jeopardy precedent that's under-theorized. There was a pretty robust debate about the status of Blockburger with respect to cumulative punishment in particular in the eighties, in cases like Ball and Garrett and Albernaz. And I don't know that the court landed at any sort of satisfactory-

Justice Gorsuch (02:26:05):

Hunter just said it, and that's what we've been doing ever since. But we also said the opposite in Shiro and Pierce.

Mr. MacLeod (02:26:12):

That's right. And Justice Gorsuch. I don't have any particular dog in that fight.

Justice Gorsuch (02:26:17):

That's why I wasn't going to bother you with it, but you brought it up, Counsel.

Mr. MacLeod (02:26:20):

Oh, Your Honor, I brought it up simply because-

Justice Gorsuch (02:26:22):

You put the dog in the fight [inaudible 02:26:25] next time.

Mr. MacLeod (02:26:25):

Well, let me defend the dog. I referenced that because I do think that it is a strong indication that Petitioner cannot be right in the suggestion that Congress really does have to use the words "in addition to". Text is one part of the analysis that this court has performed in double jeopardy cases, but it is not the entirety of the analysis. Courts look to things like statutory structure and history and purpose. And I think if you look to that evidence in this case, it suggests an intent for cumulative punishment.

Speaker 13 (02:26:59):

Well, isn't part of the answer that if you don't have Blockburger, you have the vexing question of defining, what is an offense for double jeopardy purposes? And that could be defined more narrowly than Blockburger, or it could be defined more broadly than Blockburger.

Mr. MacLeod (02:27:16):

I think that's right, and I don't mean to suggest that Blockburger is not useful. It's particularly useful in cases like Ball, where Congress is essentially using different words to focus on and criminalize the same act. But in cases like this one, or like in Garrett, where you have a compound predicate offense, I think Blockburger becomes less useful. Justice Rehnquist wrote a number of opinions expressing that view. The government endorsed it in Garrett, and I think it remains true that Blockburger in cases can sometimes obscure what Congress intended rather than clarifying.

Chief Justice Roberts (02:27:51):

Justice Thomas, any further? Justice Alito? Mr. Gorsuch? Justice Kavanaugh? Justice Barret? Justice Jackson. Thank you, Counsel.

Mr. MacLeod (02:28:04):

Thank you, Your Honor.

Chief Justice Roberts (02:28:05):

Rebuttal, Mr. Larson?

Mr. Larson (02:28:12):

Thank you, Mr. Chief Justice. Just a couple of points to clarify. Rutledge and Ball make very clear you cannot impose two convictions if we have a double jeopardy problem here. It's not just about the sentence, and if you can impose two convictions, then we don't get to see (1)(d)(2) about how a sentence under (c) should run. That's a procedural instruction, not a substantive authorization to twice punish one crime.

(02:28:34)
I did want to address Justice Kavanaugh's point about notwithstanding. This language was in the statute in Rutledge. The drug statute in Rutledge said, (a)(41), "Notwithstanding any other provision of law, the court shall not suspend this sentence". Likewise, in the CCE statute, "The sentence shall not be suspended." Each of those statutes said, "You cannot avoid a sentence." Mr. Rutledge was convicted under both of them, and this court said, " Only one conviction can stand." There's a double jeopardy problem here, and there's no clear indication allowing double punishment. That is the situation, Your Honor.

(02:29:08)
This court has traditionally recognized that different statutes with different penalties, even minimum penalties, even ones that can't be avoided or suspended, language like this does not speak to the question here. The question is whether Congress has clearly authorized twice punishing one crime. It hasn't done so. Amicus has pointed to no text in the statute saying so. He's pointed to no history saying so. In fact, Congress specifically rejected the proposal to double punish a lethal shooting when it wrote 924(j). As this court explained in Lora, Congress decided, if you're going to get sentenced to death or up to life in prison under (j), we don't need to put the five years on top. There's no point in that. Congress has not authorized two punishments for the one crime here, Your Honors. This court should reverse the judgment below.

Chief Justice Roberts (02:29:53):

Thank you, Counsel. Mr. MacLeod. This court appointed you to brief and argue this case as an amicus curiae in support of the judgment below. You have ably discharged that responsibility for which we are grateful. The case is submitted.

Speaker 14 (02:30:09):

The Honorable Court is now adjourned until tomorrow at 10 o'clock.