The oral argument not particularly noteworthy in terms of argument advancement. I was surprised at several points where the justices didn't seem to know some basic points about the background of the case. Justice Breyer didn't know that every state had a sex offender registry even though that was the case when the Court decided Smith v. Doeyears ago. And everyone was focusing on the purposes of SORNA in a very basic sense. I think the most interesting exchange in the argument was when Justice Scalia was pressing the government:
JUSTICE SCALIA: I don't know where you get that from. I can understand how you can say, which is what Mr. Rothfeld says, that it has to follow the requirement to register. That's the way the statute reads: Whoever, one, is required to register, not whoever has committed an offense that -- that would later justify registration. It seems to me you are just making up the -- the prior act that -- that triggers the interstate travel requirement.
MR. GANNON: Well, I don't think that we are making it up, Justice Scalia.
JUSTICE SCALIA: Well, what text do you base it on? One says "is required to register," and the position of the Petitioner is: After you are required to register, you must travel in interstate commerce. And you say: No, it's after you commit the offense that you must travel on interstate. Where do you get that from?
MR. GANNON: Well, we get that from the facts, from the context here, from the anomaly that would be created, the structural anomaly about the differential treatment between Federal and State sex offenders.
I wished Justice Scalia had pushed the point one step further. Why exactly is it an anomaly for state and federal sex offenders to be treated in a different manner? If the only difference is based upon a different element which is jurisdictional in nature, a difference is not an anomaly - it is the essence of America's system of federalism. Of course, this is one of the problems with the Court only reviewing the statutory issue and Ex Post Facto claim (although the Ex Post Facto claim was barely mentioned in the argument). If the Court were also considering the Commerce Clause claim, the government would be in a pickle at the point of discussing the anomaly. However, Gannon was able to make an argument that seemed to quiet the Justices that he might not have otherwise been able to make.
Overall, I think Carr's side conceded an awful lot about the role of SORNA in our system. I understand why, since the claim they were focusing on was a statutory interpretation issue. However, the conflation of 2250(a) and the national registry really made the government's overall position easier to make. My prediction is a big loss for Carr on the statutory interpretation issue. Although I was an author of the Ex Post Facto brief, nothing from the hearing gave me any indication of how the Justices would approach that issue. I'm inclined to believe, though, that following the normal pattern the sex offender will lose and the Court will push the Ex Post Facto Clause a bit further to the side.