On a single evening, William Dale Wooden went on a spree, burglarizing 10 units in the same storage facility. The question resolved in the Supreme Court’s somewhat unanimous decision in Wooden v. United States is whether, under the Armed Career Criminal Act, 18 U. S. C. §924(e)(1) (ACCA), Wooden’s prior convictions were for offenses occurring on different “occasions,” because the burglary of each unit happened at a distinct point in time, rather than simultaneously. All of the Justices (Kagan, J., writing the definitive majority opinion) agreed that the answer is “no.” Convictions arising from a single criminal episode can only count once under ACCA.

While every Justice approved the outcome, there are multiple concurrences. Among those opinions, Barrett, J., joined by Thomas, J., concurred in the judgment but rejected a section of Justice Kagan’s lead opinion that traced a complicated legislative and judicial history of ACCA’s scope—no surprise there from jurisprudential conservatives who are strict textualists. Court fans likely will be more interested in the fact that, in another concurring opinion, Justices Gorsuch and Sotomayor again are on the same side, this time in arguing that ACCA is unduly complex and ambiguous. Among other things, they would apply the so-called “rule of lenity,” which holds that, if a federal criminal statute is extremely ambiguous, then the statute should be interpreted in the criminal defendant’s favor. See Ocasio v. United States, 578 U. S. 282, 295, n. 8 (2016). One commentator I’ve seen describes these allies as the new Ginsburg and Scalia. Time will tell, but I’d argue that the case says more about Justice Gorsuch’s similarity to Justice Scalia on individual rights questions.

For me, as a veteran of the insurance coverage litigation following the destruction of the World Trade Center towers on September 11, 2001, the Wooden case recalls the intense debate as to whether the fact that each tower was hit by a separate terrorist-commandeered airliner rendered the destruction of the two towers two occurrences or one. That question was decided differently by two juries, based on the wordings of the relevant insurance policies. Wooden is the beneficiary of an arguably imprecisely worded statute.

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