Schock v. United States ( 2019 )

Cite as: 586 U. S. ____ (2019) 1
SOTOMAYOR
Statement of, J., concurring
SOTOMAYOR , J.
SUPREME COURT OF THE UNITED STATES
AARON J. SCHOCK v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 18–406. Decided February 19, 2019
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR respecting the denial
of certiorari.
Petitioner Aaron Schock, a former Congressman from
Illinois, asks us to decide whether he may immediately
appeal, as a collateral order, the denial of his motion to
dismiss part of a criminal indictment against him for
running afoul of the Constitution’s Rulemaking Clause.
See Art. I, §5. He argues that certain charges against him
would require the District Court for the Central District of
Illinois to interpret internal rules adopted by the House of
Representatives to govern its own Members, and thus
would violate separation-of-powers doctrine. The Court of
Appeals for the Seventh Circuit held that denials of such
Rulemaking Clause challenges are not collateral orders
subject to immediate appeal, 891 F.3d 334 (2018), in
disagreement with at least one other Court of Appeals, see
United States v. Rostenkowski, 59 F.3d 1291, 1297 (CADC
1995). Although this question does not arise frequently—
presumably because criminal charges against Members of
Congress are rare—the sensitive separation-of-powers
questions that such prosecutions raise ought to be handled
uniformly.
It is not clear, however, that this case cleanly presents
the question whether such orders are, as a general matter,
immediately appealable. The District Court here denied
the motion to dismiss on Rulemaking Clause grounds only
provisionally, stating that it would revisit the matter “if at
2 SCHOCK v. UNITED STATES
SOTOMAYOR
Statement of, J., concurring
SOTOMAYOR , J.
any time it becomes apparent that the prosecution will
rely upon evidence that requires the interpretation of
House Rules.” 2017 WL 4780614, *7, and n. 6 (CD Ill.,
Oct. 23, 2017). Indeed, the District Court dismissed the
only count of the indictment that did, in its view, neces-
sarily turn on an interpretation of the House Rules. Id., at
*8–*11. As a result, the District Court’s order may have
been insufficiently “conclusive” to support collateral-order
appellate jurisdiction, whether or not such jurisdiction
would otherwise have been proper. See Swint v. Cham-
bers County Comm’n, 514 U.S. 35, 42 (1995). The Court
of Appeals did not address that alternative ground for
affirmance, the presence of which might complicate our
review.
I therefore concur in the Court’s decision to deny certio-
rari. I do so on the understanding, however, that Schock
remains free to reassert his Rulemaking Clause challenge
in the District Court should subsequent developments
warrant.*
——————
* In its briefing to the Court of Appeals, the Government argued that
the House regulations were, in fact, “ ‘necessary’ ” and “important” to
prove other charges still pending. Brief for Appellee in No. 17–3277
(CA7), p. 55. Those representations may be pertinent to the District
Court’s further consideration of Schock’s arguments.