All copying is not created equal: borrowed language in Supreme Court opinions.

• Author: Feldman, Adam
• Position: Continuation of III. Measuring Language Overlap F. Lifted Relationships (High Percentage Overlap and High Word Overlap

And finally the opinion adopts, nearly verbatim, the SG's assessment of the Court's own precedent:

And this Court has repeatedly recognized that a legislature may constitutionally prohibit convicted felons from engaging in activities far more fundamental than the right to possess firearms at issue here. See Richardson v. Ramirez, 418 U.S. 24 (1974) (disenfranchisement of felons); DeVeau v. Braisted, 363 U.S. 144, 157-160 (1960) (felons barred from waterfront employment); Hawker v. New York, 170 U.S. 189 (1898) [58] (prohibition on medical practice by a felon). (102)

This Court has recognized repeatedly that a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm. See Richardson v. Ramirez, 418 U.S. 24 (1974) (disenfranchisement); DeVeau v. Braisted, 363 U.S. 144 (1960) (proscription against holding office in a waterfront labor organization); Hawker v. New York, 170 U.S. 189 (1898) (prohibition against the practice of medicine). (103)

To be sure, the Court has made clear that an outstanding uncounselled felony conviction cannot reliably be used for certain purposes. See Burgett v. Texas, 389 U.S. 109 (1967); United States v. Tucker, 404 U.S. 443 (1972); Loper v. Beto, 405 U.S. 473 (1972). But the Court has never suggested that an uncounselled conviction is invalid for all purposes (see, e.g., Scott v. Illinois, supra). (104)

We recognize, of course, that under the Sixth Amendment an uncounseled felony conviction cannot be used for certain purposes. See Burgett, Tucker, and Loper, all supra. The Court, however, has never suggested that an uncounseled conviction is invalid for all purposes. See Scott v. Illinois. (105)

In each of those cases this Court found that the conviction or sentence in question violated the Sixth Amendment because it depended upon the reliability of a particular uncounselled conviction in the past. The federal gun laws, however, focus on the mere fact of conviction, regardless of its reliability, in order to keep firearms away from potentially dangerous people. (106)

In each of those cases, this Court found that the subsequent conviction or sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons. (107)

The high level of similarity between the SG's brief and the opinion in Lewis reinforces the conclusion that the trust and faith that Justice Blackmun and his clerks placed in the SG makes Lifted opinions more likely in cases involving the SG. This pattern continues through the remainder of Justice Blackmun's Lifted opinions for the Court, which all rely heavily on the language from the SG's briefs.

DiFrancesco v. United States, (108) is yet another Blackmun opinion for the Court in which the opinion language parallels that in the SG's brief, utilizing the same linguistic framework as the SG's brief to interpret the Court's precedent:

This rule has been characterized as attaching "particular significance to an acquittal" (United States v. Scott, supra, 437 U.S. at 91), and it has been justified on the basis that "[t]o permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that 'even though innocent he may be found guilty.'" Ibid. (109)

This is justified on the ground that, however mistaken the acquittal may have been, there would be an unacceptably high risk that the Government, with its superior resources, would wear down a defendant, thereby "enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S., at 188. (110)

The decisions of this Court in the sentencing area have also established that a sentence does not have qualities of constitutional finality comparable to an acquittal. (111)

This Court's decisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal. (112)

The multiple punishment guarantee that has evolved in the holdings of this Court, apart from the Benz dictum, clearly is not involved in this case.... As in Ex parte Lange, a defendant may not receive a higher sentence than that authorized by the legislature.... Clearly, no double jeopardy problem would have been presented in Ex parte Lange if Congress had established that the offense was punishable by fine and imprisonment, even though those are multiple punishments. See Whalen v. United States, supra, slip op. 4. There is no question what punishment was authorized by Congress under 18 U.S.C. 3575 and 18 U.S.C. 3576.... Accordingly, 18 U.S.C. 3576 does not violate the guarantee against multiple punishment that is enunciated in Ex parte Lange. (113)

The guarantee against multiple punishment that has evolved in the holdings of this Court plainly is not involved in this case. As Ex parte Lange demonstrates, a defendant may not receive a greater sentence than the legislature has authorized. No double jeopardy problem would have been presented in Ex parte Lange if Congress had provided that the offense there was punishable by both fine and imprisonment, even though that is multiple punishment. See Whalen v. United States, 445 U.S., at 688-689; ... id., at 697-698 (concurring opinion). The punishment authorized by Congress under [section][section] 3575 and 3576 is clear and specific and, accordingly, does not violate the guarantee against multiple punishment expounded by Ex parte Lange. (114)

DiFrancesco also tracks the reasoning and language in the SG's brief to explain the Court's decision that the Double Jeopardy Clause is not violated by allowing the government to appeal:

Since it is not a prosecution appeal itself that can fall afoul of the Double Jeopardy Clause, but rather the relief requested by the appeal, it must next be considered whether a criminal sentence, once pronounced, must be accorded constitutional finality similar to that attaching to a jury's verdict of not guilty. Neither the history of sentencing practices, the pertinent holdings of this Court, nor considerations of double jeopardy policy supports such an equation. (115)

The double jeopardy focus, thus, is not on the appeal but on the relief that is requested, and our task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury's verdict of acquittal. We conclude that neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation. (116)

Thus, appeal of a sentence would seem to be a violation of double jeopardy only if the original pronouncement of sentence is to be treated in the same way as an acquittal and the appeal is to be treated as a retrial.... Essentially, the court of appeals' theory is that the imposition of a sentence should be treated, for double jeopardy finality purposes, as an "implied acquittal" of a greater sentence. See Van Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale L. J. 606, 634-635 (1965). (117)

Appeal of a sentence, therefore, would seem to be a violation of double jeopardy only if the original sentence, as pronounced, is to be treated in the same way as an acquittal is treated and the appeal is to be treated in the same way as a retrial. Put another way, the argument would be that, for double jeopardy finality purposes, the imposition of the sentence is an "implied acquittal" of any greater sentence. See Van Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale L. J. 606, 634-635 (1965). (118)

In a later section, the opinion language mirrors the certainty in the SG's brief regarding the common law tradition of allowing such an appeal:

While there is little American experience with appellate review of sentences, this history demonstrates that the common law has never ascribed such finality to a sentence as would prevent a legislature from authorizing its appeal by the prosecution. Indeed, several countries that trace their legal systems to the English common law permit such appeals. See Canada: Can. Rev. Stat. [section][section] 605 (l)(b) and 748(b)(ii) {Martin's Annual Criminal Code (1979)); Australia (New South Wales): Criminal Appeal Act of 1912, as amended in 1924, 3 Pub. Acts N.S.W. [section] 5D (1959); New Zealand: Crimes Act 1961, as amended by the Crimes Amendment Act of 1966, 1 Repr. Stat. N.Z. [section] 383 (a) (1979). (119)

Thus it may be said with certainty that history demonstrates that the common law never ascribed such finality to a sentence as would prevent a legislative body from authorizing its appeal by the prosecution. Indeed, countries that trace their legal systems to the English common law permit such appeals. See Can. Rev. Stat. [section][section] 605(1)(b) and 748(b)(ii) (1970), Martin's Annual Criminal Code 523, 636 (E. Greenspan ed. 1979); New Zealand Crimes Act 1961, as amended by the Crimes Amendment Act of 1966, 1 Repr. Stat. N. Z. [section] 383(2) (1979). (120)

Like the opinion in Lewis, Justice Blackmun's opinion for the Court in Dickers on v. New Banner Institute (121) deals with sentencing. As happens often in a Lifted case involving the SG, the Dickerson Court actually adopts both the SG's interpretation of Lewis as a precedent and the SG's explanation of why the Court should differentiate its reasoning in this case:

In Lewis, this Court recognized an obvious, "commonsense" exception to the statutory language for persons whose convictions have been reversed or vacated on appeal or on...