Page:Denard Stokeling v. United States.pdf/31

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Furthermore, even if it is true “that many States’ robbery statutes would not qualify as ACCA predicates” under a faithful reading of Johnson, see ante, at 7, that outcome would stem just as much (if not more) from the death of the residual clause as from a decision in this case. As discussed above, various state robbery statutes qualified under that expansive clause for nearly 20 years, until vagueness problems led this Court to strike the clause down as unconstitutional. See supra, at 13–14, and n. 2; see also Johnson v. United States, 576 U. S. ___ (2015). The fall of that clause would therefore be an independent cause of any drop in qualifying predicates, regardless of what this Court decides today. (A drop in robbery statutes qualifying as ACCA predicates could also, of course, be traceable to Congress’ decision not to continue enumerating robbery when it enacted the ACCA in the first place.) In short, the majority, fearful for the camel, errs in blaming the most recent straw.^[1]

Separately, even if a number of simple robbery statutes were to cease qualifying as ACCA predicates, that does not mean–as the majority implies, see ante, at 7–that the same fate necessarily would befall most or even many
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overcome a victim’s resistance–even if that resistance is minimal–necessitates the use of “physical force” within the meaning of the ACCA. See also Brief for Petitioner i. If a state robbery statute’s overcoming-resistance requirement were pegged under state law to more than minimal resistance, this would be a different case.

↑ The majority’s doubling down on Johnson’s “capable of causing physical pain or injury” language, see ante, at 10–11, suggests nostalgia for the residual clause (which reads: “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)). Congress could, at any time, re-enumerate robbery (and any other crimes it might have intended the residual clause to cover) if it so chose. The majority’s decision today, meanwhile–with its endorsement of the mere “potentiality” of injury, see ante, at 11–risks sowing confusion in the lower courts for years to come.

[1] The majority’s doubling down on Johnson’s “capable of causing physical pain or injury” language, see ante, at 10–11, suggests nostalgia for the residual clause (which reads: “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)). Congress could, at any time, re-enumerate robbery (and any other crimes it might have intended the residual clause to cover) if it so chose. The majority’s decision today, meanwhile–with its endorsement of the mere “potentiality” of injury, see ante, at 11–risks sowing confusion in the lower courts for years to come.

[1]