Today the Court decided Brown v. United States. The case turned on how to interpret the Armed Career Criminal Act (ACCA). The Court split 6-3, with Justice Alito writing the majority opinion. Justice Jackson dissented, and was joined by Justices Sotamayor and, in part, Justice Gorsuch. I don't have much to say about the substance of the opinion. One point of disagreement, however, stuck out.
Justice Alito's majority opinion relied on a legislative drafting guide:
Use of the present tense, as opposed to the past, was likely a stylistic rather than a substantive choice. Around the time of ACCA's enactment, legislative drafters were instructed, "[w]henever possible," to "use the present tense (rather than the past or future)." House Office of the Legislative Counsel, Style Manual; Drafting Suggestions for the Trained Drafter §102(c), p. 2 (1989); see also D. Hirsch, Drafting FederalLaw §5.6, p. 45 (2d ed. 1989) ("Various commentators on drafting have tried, over the years, to persuade drafters touse the present tense . . . "). So, at least in the instant context, we cannot place too much weight on the use of the present tense as opposed to the past.
