Supreme Court Justice Elena Kagan has disagreed with Justice Samuel Alito Jr. in 35 percent of the cases decided so far this term, more than she has differed with any other justice. On June 20, they even disagreed about the board game Clue.
The case was Descamps v. United States, and the issue was how to categorize a defendant’s prior conviction for the purpose of enhancing a sentence under the Armed Career Criminal Act.
Kagan authored the majority opinion, and was describing how individual criminal offenses can be broken down into “an infinite number of sub-crimes” depending on how the crime was committed.
She resorted to the game Clue—or the plot line of the musical version of Clue, to be exact—to illustrate her point. Kagan wrote: "(Think: Professor Plum, in the ballroom, with the candlestick?; Colonel Mustard, in the conservatory, with the rope, on a snowy day, to cover up his affair with Mrs. Peacock?)"
It was an example of the vivid writing, aimed at making complex concepts understandable that Kagan has adopted in her first years on the high court.
But Alito, the sole dissenting justice, was apparently not impressed. Making the point that different ways of committing a crime do not make them different crimes, Alito wrote a footnote responding to Kagan’s reference.
“The board game Clue, to which the Court refers… does not provide sound legal guidance. In that game, it matters whether Colonel Mustard bashed in the victim’s head with a candlestick, wrench, or lead pipe. But in real life, the colonel would almost certainly not escape conviction simply because the jury was unable to agree on the particular type of blunt instrument that he used to commit the murder.”
Tony Mauro can be contacted at firstname.lastname@example.org.