Scalia: “What is more abhorrent than violence against women? When everything is domestic violence, nothing is.”

March 26th, 2014

Nino will get some flak for his opinion in United States v. Castleman. The case presents a relatively mundane question of whether a certain predicate offense constitutes “domestic violence” under the Armed Career Criminal Act. Justice Scalia takes exception with the sources Justice Sotomayor relies on to define “domestic violence.”

First, forget the war on women. This opinion is a “war with the English language!”

Fourth, and finally, the Court seeks to evade Johnson and Leocal on the ground that “‘domestic violence’ encom- passes a range of force broader than that which con- stitutes ‘violence’ simpliciter.” Ante, at 6, n. 4. That is to say, an act need not be violent to qualify as “domestic violence.” That absurdity is not only at war with the English language, it is flatly inconsistent with defini- tions of “domestic violence” from the period surrounding §921(a)(33)(A)(ii)’s enactment. At the time, dictionaries defined “domestic violence” as, for instance, “[v]iolence between members of a household, usu. spouses; an assault or other violent act committed by one member of a house- hold against another,” Black’s Law Dictionary 1564 (7th ed. 1999), and “[v]iolence toward or physical abuse of one’s spouse or domestic partner,” American Heritage Diction- ary 534 (4th ed. 2000).6 Those definitions, combined with the absence of “domestic violence” entries in earlier dic- tionaries, see, e.g., Black’s Law Dictionary 484 (6th ed. 1990); American Heritage Dictionary 550 (3d ed. 1992), make it utterly implausible that Congress adopted a “term of art” definition “encompassing acts that one might not characterize as ‘violent’ in a nondomestic context,” ante, at 7.

Scalia also takes issue the fact that Justice Sotomayor relied on (gasp!) an amicus from the National Network to End Domestic Violence, that cites (double gasp!) law review articles, and (triple gasp!) “foreign government bureaus,” to define “domestic violence.”

The Court ignores these authorities and instead bases its definition on an amicus brief filed by the National Network to End Domestic Violence and other private organizations,8 and two publications issued by the De- partment of Justice’s Office on Violence Against Women. The amicus brief provides a series of definitions—drawn from law-review articles, foreign-government bureaus, and similar sources—that include such a wide range of nonvio- lent and even nonphysical conduct that they cannot possi- bly be relevant to the meaning of a statute requiring “physical force,” or to the legal meaning of “domestic vio- lence” (as opposed to the meaning desired by private and governmental advocacy groups). For example, amici’s definitions describe as “domestic violence” acts that “hu- miliate, isolate, frighten, . . . [and] blame . . . someone”; “acts of omission”; “excessive monitoring of a woman’s behavior, repeated accusations of infidelity, and control- ling with whom she has contact.” Brief for National Network to End Domestic Violence et al. as Amici Curiae 5–8, and nn. 7, 11.

Scalia also faults the DOJ definition of “domestic violence” in the paragraph that will grab the most attention:

Of course these private organizations and the Depart- ment of Justice’s (nonprosecuting) Office are entitled to define “domestic violence” any way they want for their own purposes—purposes that can include (quite literally) giving all domestic behavior harmful to women a bad name. (What is more abhorrent than violence against women?) But when they (and the Court) impose their all- embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. Congress will have to come up with a new word (I cannot imagine what it would be) to denote actual domestic violence.

I’m convinced that at this point, Nino is just trolling us. He could’ve made his point effectively without this paragraph. But he did it because Scalia.

For good measure, Scalia said the government receives no deference here–same for groups who have an interest in expanding the scope of “domestic violence.”

And in any event, the Department of Justice thankfully receives no deference in our interpretation of the criminal laws whose claimed violation the Department of Justice prosecutes. See Gonzales v. Ore- gon, 546 U. S. 243, 264 (2006) (citing Crandon v. United States, 494 U. S. 152, 177 (1990) (SCALIA, J., concurring in judgment)). The same ought to be said of advocacy organ- izations, such as amici, that (unlike dictionary publishers) have a vested interest in expanding the definition of “do- mestic violence” in order to broaden the base of individuals eligible for support services.10

10 See, e.g., National Network to End Domestic Violence, Reauthorize The Family Violence Prevention and Services Act 1 (Sept. 22, 2010) (advocating the expansion of a program assisting victims of domestic violence to include victims of “dating violence” and thereby “ensure that all victims in danger can access services”), online at downloads/Policy/FVPSA_fact_sheet_9-22-10.pdf.

The truth of the matter is now other courts will cite the Supreme Court as an authoritative statement of what “domestic violence” is. Justice Scalia should have cited Alli Orr Larsen’s new, important article on point, “The Trouble with Amicus Facts.”

Justice Sotomayor responds to Scalia’s charges:

JUSTICE SCALIA’s concurrence discounts our reference to social-science definitions of “domestic violence,” including those used by the organizations most directly engaged with the problem and thus most aware of its dimensions. See post, at 8–11. It is important to keep in mind, how- ever, that the operative phrase we are construing is not “domestic violence”; it is “physical force.” §921(a)(33)(A). “Physical force” has a presumptive common-law meaning, and the question is simply whether that presumptive meaning makes sense in defining a “misdemeanor crime of domestic violence.”6

6 The concurrence’s reliance on definitions of “domestic violence” in other statutory provisions, see post, at 8, and n. 7, is similarly unper- suasive. These other provisions show that when Congress wished to define “domestic violence” as a type of “violence” simpliciter, it knew how to do so. That it did not do so here suggests, if anything, that it did not mean to. See, e.g., Custis v. United States, 511 U. S. 485, 492 (1994). This also answers the concurrence’s suggestion, post, at 10, that our holding will somehow make it difficult for Congress to define “domestic violence”—where it wants to—as requiring violent force.

Though, I’m sad Scalia didn’t cite the “domestic violence” clause of the Constitution!

SECTION. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

That is a favorite for statutory interpretation exercises. Does “domestic violence ” in the Article IV of the Constitution takes its meaning from 1787 or 2014?

Paging Linda Greenhouse–this column will write itself.