Replies

JUSTICE GORSUCH, concurring in part and concurring in
the judgment.
Vague laws invite arbitrary power. Before the Revolution,
the crime of treason in English law was so capaciously
construed that the mere expression of disfavored
opinions could invite transportation or death. The founders
cited the crown’s abuse of “pretended” crimes like this as
one of their reasons for revolution. See Declaration of
Independence ¶21. Today’s vague laws may not be as
invidious, but they can invite the exercise of arbitrary
power all the same—by leaving the people in the dark
about what the law demands and allowing prosecutors and
courts to make it up.
The law before us today is such a law. Before holding a
lawful permanent resident alien like James Dimaya subject
to removal for having committed a crime, the Immigration
and Nationality Act requires a judge to determine
that the ordinary case of the alien’s crime of conviction
involves a substantial risk that physical force may be
used. But what does that mean? Just take the crime at
issue in this case, California burglary, which applies to
everyone from armed home intruders to door-to-door
salesmen peddling shady products. How, on that vast
spectrum, is anyone supposed to locate the ordinary case
and say whether it includes a substantial risk of physical
force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their
fate. In my judgment, the Constitution demands more...

I begin with a foundational question. Writing for the
Court in Johnson v. United States, 576 U. S. ___ (2015),
Justice Scalia held the residual clause of the Armed Career
Criminal Act void for vagueness because it invited
“more unpredictability and arbitrariness” than the Constitution
allows. Id., at ___ (slip op., at 6). Because the
residual clause in the statute now before us uses almost
exactly the same language as the residual clause in Johnson,
respect for precedent alone would seem to suggest
that both clauses should suffer the same judgment.