The Yale Law Journal


No Entrenchment: Thomas on the Hobbs Act, the Ocasio Mess, and the Vagueness Doctrine

02 Aug 2017
Kate Stith

Time and again, we have seen that neither precedent nor a perceived need to achieve consensus on the Court can hold Justice Clarence Thomas back from pronouncing what he has found to be the best understanding of the Constitution and federal statutes. His decisions scrape away at what Ralph Rossum has called the “excrescence” of flawed precedent,1 no matter how deeply entrenched. He looks beyond the entrenchment to the Constitution and history. Not surprisingly, his administrative law decisions and his decisions directly interpreting the Constitution receive the most attention. But the Justice’s deep commitment to not only thinking, but rethinking is also on display in the more prosaic criminal-law opinions I will discuss.

In Justice Thomas’s first term, the Court considered Evans v. United States,2 in which it was called on to interpret the Hobbs Act’s prohibition on extortion “under color of official right.”3 Writing for the six-person majority in Evans, Justice Stevens determined that when Congress adopted the Hobbs Act in 1946, it believed it was codifying the common-law crime of extortion, as New York recently had done.4 And at common law, Stevens said, extortion required only that a public official accept a payment made in return for official acts; there was no requirement that the official initiate or induce the payment, which was the issue that had split the circuit courts.5 Therefore, said Justice Stevens, mere acceptance of money or property, knowing it was intended to be a bribe, constitutes Hobbs Act extortion.6

Justice Thomas’s dissent was powerful and persuasive. The majority, he said, got the common law wrong, and hence got the Hobbs Act wrong.7 The Justice took on not just the issue that had split the circuit courts—whether the public official had to have induced the bribe, or whether just taking a bribe is enough for conviction. Neither taking nor inducing was enough, Justice Thomas said, because the Hobbs Act did not prohibit bribery.8 It criminalized a different wrong: extortion. Citing nineteenth-century and early twentieth-century cases, he showed that the common-law offense of official extortion required not only that the official obtained a payment, but also that he obtained the payment under a “false pretense of official right to the payment.”9 Neither receiving a bribe nor inducing a bribe was enough. The official had to dupe the payor into thinking that the official was due the payment. Indeed, the very words of the Hobbs Act say that: the statute defines official extortion as “the obtaining of property from another . . . under color of official right.”10

The difference between Justice Thomas’s interpretation and that of the majority is not merely of linguistic, historical, or academic interest. Justice Thomas showed that the Court’s interpretation effectively eliminated the longstanding distinction between bribery and extortion. But this distinction is important. Bribery is a crime committed by both the bribe payor and the bribe receiver; when a bribe is paid, both the payor and the recipient may be prosecuted. Extortion, on the other hand, is a crime in which the payor is the victim of the official, not his accomplice or confederate.11 Perhaps most importantly (though not noted by Thomas, likely because the point was not critical to his analysis): extortion under color of official right is surely the more heinous crime, for it instantiates both corruption and coercion.12 Indeed, the maximum sentence for conviction of Hobbs Act extortion has always been twenty years in prison, whereas the four principal federal bribery statutes at the time the Hobbs Act was enacted had a maximum penalty of three years in prison (plus disqualification from holding office).13 Justice Thomas noted that the majority’s interpretation gave license to federal prosecutors to prosecute state and local officials (and those who pay them off) for bribery, under the guise of prosecuting them for extortion.14

Let me add a footnote. Beginning with its first bribery law in 1789, Congress had clearly and consistently limited federal criminalization of bribery only to the bribing of federal officials.15 There is nothing in the legislative history of the Hobbs Act that suggests that in 1946 (or in 1934, when Congress first prohibited affecting interstate commerce by extortion under color of official right) Congress thought it was making all state and local bribery a federal crime.16 The words of the Hobbs Act prohibition were far more limited, setting federal prosecutors loose only on those non-federal officials who obtained payment under the pretense of official right.

Justice Thomas’s early, virtually ignored, dissent in Evans was prescient. Twenty-four years later, in Ocasio v. United States,17 the majority opinion by former United States Attorney Samuel Alito followed Evans’ logic to hold that indeed the victim of an extortion under color of official right—the citizen paying the official—could be prosecuted as a co-conspirator of the official who takes the payment.18 To be clear, as strange as it sounds, Ocasio held that a Hobbs Act “victim” can “conspire” in his own extortion.19

In his Ocasio dissent, Justice Thomas reprised his Evans dissent. History, he explained again, was on the side of the defendant, because extortion and bribery are different crimes.20 Interestingly, Justice Breyer, who had not been on the Court when Evans was decided, filed a concurring opinion in Ocasio, forthrightly admitting that he “agree[d] with the sentiment expressed” in Justice Thomas’s dissenting opinion that Evans “may well have been wrongly decided.21 But Justice Breyer said that he felt constrained to “take Evans as good law.”22 Justice Thomas, of course, would not and does not let an erroneous prior construction of a federal statute stand in the way of getting it right twenty-four years later.

Ocasio’s majority opinion raises a host of troubling issues. The decision not only continues the Evans conceit that color-of-right extortion is merely bribery, but also suggests the expansion of federal prosecutorial authority to charge commercial-extortion victims in the private sector with conspiracy to violate the Hobbs Act.23 Perhaps most importantly, Ocasio may have thrown a monkey wrench into the settled understanding of what constitutes an “agreement” in federal conspiracy law. The opinion denies that its holding will mean that every color-of-right-extortion bribe payor is also a conspirator in her own extortion.24 But it is in this discussion that the majority unsettles our longstanding understanding that conspiracy agreements may be entered into unenthusiastically.25 The majority distinguishes between a conspiratorial agreement, on one hand, and the “minimal ‘consent’” required to trigger liability under the Hobbs Act, on the other hand.26 As an example, the majority says that “mere acquiescence” in a demand for payment by a local health inspector, whereby a restaurant owner agrees to pay “reluctantly,” does not constitute a conspiracy.27

Really? Many conspiratorial agreements may be entered into “reluctantly” or with “mere acquiescence.” For instance, a smitten lover who only “reluctantly” agrees to murder his paramour’s spouse is nonetheless guilty of conspiracy to commit murder. Likewise, a person who only reluctantly agrees to provide opioids to his friend’s addicted sister because she is undergoing withdrawal symptoms is nonetheless guilty of conspiracy to distribute narcotics. Justice Breyer, in his concurrence, recognizes the problem wrought by Justice Alito’s attempt to distinguish reluctant consent from reluctant conspiratorial agreements. As to the restaurant-payor scenario, Justice Breyer notes “the difficult distinction between the somewhat involuntary behavior of the bribe payor and the voluntary behavior of the same bribe payor . . . .”28 Likewise, former New York prosecutor and U.S. District Judge Sonia Sotomayor asks in her dissent, with apparent consternation:

When does mere “consent” tip over into conspiracy? Does it depend on whose idea it was? Whether the bribe was floated as an “official demand” or a suggestion? How happy the citizen is to pay off the public official? How much money is involved? Whether the citizen gained a benefit (a liquor license) or avoided a loss (closing the restaurant)? How many times the citizen paid the bribes? Whether he ever resisted paying or called the police?29

The bottom line: Evans was wrong. Rather than try to follow its logic, and thereby fouling adjacent areas of criminal-law doctrine, the Court should have, as Justice Thomas argued, cut out the tumor.

Two other Thomas criminal-law opinions likewise make a good pair and reveal Justice Thomas’s disposition to rethink first principles. In City of Chicago v. Morales,30 decided in 1999, the plurality held that Chicago’s new antiloitering ordinance was unconstitutionally vague and therefore deprived persons of liberty without due process of law. Justice Thomas’s dissent said the notion of a constitutional right to loiter “withers when exposed to the relevant history.”31 He showed that loitering laws have existed at least since the Norman Conquest and were commonplace both at the Founding and when the Fourteenth Amendment was ratified.32 But the creation of a new constitutional right was not his only concern. He also criticized the holding that the ordinance was unconstitutionally vague. Quoting from Justice White’s dissent in Kolender v. Lawson, Justice Thomas said, “any fool would know” what conduct was reached by the statute.33

Sixteen years later, in Johnson v. United States,34 we find Justice Thomas not just disputing the supposed vagueness of a single statute, but casting doubt on the entire vagueness doctrine.35 This time, his turn to history took him all the way back to sixteenth-century England. Through four centuries, English and American courts dealt with vague statutes36 by applying a rule of strict construction similar to today’s rule of lenity.37 They did not reach out to nullify whole provisions as unconstitutional. Indeed, the so-called “vagueness doctrine”—which involves striking down, rather than narrowly construing, a provision of law—did not make its first appearance in the Supreme Court until 1914.38 Justice Thomas noted that the doctrine “shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”39

The vagueness doctrine represents another instance in which Justice Thomas takes a very different approach than Justice Scalia.40 Justice Scalia wrote the majority opinion in Johnson, which struck down the so-called residual clause of the Armed Career Criminal Act (ACCA) on vagueness grounds.41 Justice Thomas concurred in the judgment on other grounds,42 thereby leaving “for . . . another day” whether the entire vagueness doctrine is unfounded in the Constitution.43

The path of least resistance is all too easy to take. In the law, that often translates into a reflexive reliance on precedent. Justice Thomas is not so tempted. In each and every opinion, he forces us to engage with the principle and history that lie beyond past decisions—whether or not he once agreed with their conclusions.44 That commitment to intellectual honesty is no doubt one of his most profound and enduring contributions to the law.

Kate Stith is the Lafayette S. Foster Professor of Law at Yale Law School. Many thanks to Megan McGlynn ’17 for her insightful and most helpful research assistance.

Preferred Citation: Kate Stith, No Entrenchment: Thomas on the Hobbs Act, the Ocasio Mess, and the Vagueness Doctrine, 127 Yale L.J. F. 233 (2017),