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Welcome to scot Discast, a project
of the Federalist Society for Law and Public

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Policy Studies. Our contributors join us
from around the country to bring you expert

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commentary on US Supreme Court cases as
they are argued and the decisions are issued.

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The Federalist Society takes no position on
particular legal or public policy issues.

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All expressions are those of the speaker. Hello, and welcome to SCO Discast.

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I'm your host, Kyle hammernis On, behalf of the Faculty division of

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the Federalist Society. We are here
today to discuss Pulsifer versus United States,

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in which the Supreme Court issued a
sixth through decision on March fifteenth, twenty

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twenty four. We are joined today
by Verkrant Ready bukarant Is, a senior

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fellow at Stand Together Trust specializing in
the area of criminal justice reform. And

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with that, I like to turn
things over to our guest to discuss the

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overview of the case and the Court's
decision. Well, thanks so much,

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Kyle. This is a really fun
case to talk about. It's the kind

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of case that lawyers just love,
and it's the kind of case that maybe

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explains why non lawyers hate lawyers so
much. The entire case is about determining

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whether or not the word and means
and or whether or not the word and

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means or. You might think that
sounds completely insane, when would and ever

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mean or? But there's a plausible
argument, and I'll give it. But

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first let's start with a little bit
of the backstory here. The case concerns

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a man named Mark Pulsper who was
busted and convicted for drug crimes in Iowa,

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meth amphetamine if I remember correctly,
and he had a bit of a

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record, and he was subject to
a federal mandatory minimum sentence, and that

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sentence would have been up to fifteen
years behind bars. Now, there were

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some extenuating circumstances with him, and
there is excuse me, a safety valve

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provision that allows judges to depart from
that mandatory minimum if they think that,

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well, this is a unique case, and you know, mister Pulspers not

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necessarily the kind of guy that you'd
want to put away for fifteen years.

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That's not penealogically necessary. But some
people are not eligible for the safety valve.

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You're not eligible for the safety valve
if you have a particular kind of

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criminal history. We don't need to
go into the details of what the criminal

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history provisions are for the sake of
this case. Even Justice Kagan, in

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her majority opinions said, just to
make things simple, let's just say that

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if you have A, B and
C, you are exempt from the safety

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valve protection. Now, the question
is not what A means, what B

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means, or what C means.
It's what and means when you say A,

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B, and C. And this
matters. It matters big time because

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what mister Pulsper was saying was that
we all agree that I did A,

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and we all agree that I did
B, but I didn't do C.

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We all agree on that also,
And because I didn't do C, this

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doesn't apply to me. I'm exempt. But the other side is saying,

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no, no, no, no, you did A and you did B

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and that's adequate. And we don't
even have to get into the C portion

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of it. And this matters big
time because again he's subject to a fifteen

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year mandatory minimum sentence. It also
matters for people beyond him because this entire

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provision comes out of the twenty eighteen
federal criminal Justice reform called the First Step

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Act, and there are ten thousand
federal defendants who are in a similar position

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to mister Pulsifer, and they were
obviously watching this case very closely to figure

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out, Okay, what's the court
going to say, does A mean and?

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Or does and mean? Or let's
dig into that a little bit,

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because I think listeners are probably already
going, how is this even possible?

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What have we been talking about for
the last five minutes without getting into this

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completely bizarre question. You probably think
that if I were to say, Kyle,

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I'm making a salad, can you
run to the store and pick up

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spinach, tomatoes, and carrots?
That means pick up all three things,

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spinach, tomatoes, and carrots.
If you come home with just one item

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or two items, you didn't get
the order correct, right. That seems

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very obvious to everybody. And this
is more or less the case that mister

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Paulsper and the dissenters actually this opinion
are making Justice Kagan and the majority said,

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well, it's not really that simple, and we can all come up

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with examples where and actually means or
in fact, she says, I'll pull

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one right out of the Constitution.
There's a provision of the Constitution which probably

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everybody on this call is familiar with
that says that the youjudicial power power an

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Article three, shall extend to all
cases arising under this Constitution, the laws

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of the United States, and treaties. Everybody understands that what that means is

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that a case has got to come
out of the Constitution, out of the

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various laws of the United States,
or out of treaties. It doesn't mean

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that a case has to be under
all three things simultaneously. That be completely

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absurd. There are very few things
like that in the first place. Everybody

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gets that, and that's really not
even any kind of a point of debate.

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So there are cases she and the
majority argue in which and can mean

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or. And in this particular case, she thinks it's plausible that and means

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or, which is what the government
was arguing. So mister Pulsifer comes back

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and argues, no, there are
instances where you have a negation where you're

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speaking in the negative, where it's
clear that and means and. And the

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example provided here is suppose you say
don't drink and drive. Everybody understands that

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don't drink and drive does not mean
don't ever drink and don't ever drive.

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It means, don't drink and drive
simultaneously. Don't do those two things together.

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We're in a podcast that doesn't make
sense that I'm gesturing with my hands,

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but I am to say, these
are two things that happen simultaneously.

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That's what don't drink and drive means. But you know, this entire opinion

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is almost like a prize fight,
and two heavyweights are just going back and

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forth against each other, coming up
with hypothetical after hypothetical to counter the other

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one's hypothetical. And here Justice Kagan
comes right back against the Descent, which

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was written by Justice Gorsich and says, No, you can think of negations

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that work in the way that I'm
talking about. So, for example,

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suppose I met someone's parents and I
said I didn't like his mother and father.

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That doesn't mean I didn't like his
mother separately and I didn't like his

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father separately. But as long as
the two of them were take him just

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fine. No, when I say
I didn't like his mother and father,

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that means I didn't like his parents
period, whether they were separate or whether

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they were together. They go back
and forth like this, hypothetical after hypothetical

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after hypothetical. It's actually just fascinating
to read, and it's really if you're

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interested in linguistics. A number of
linguists actually submitted an amicus brief in this

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case. It's just so interesting to
think through the hypotheticals. And there are

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perfectly plausible cases on both sides of
this. The and means and position which

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the government argued and which Justice Kagan
and the majority agreed with, was also

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a position that the Eighth Circuit agreed
with, that the Eleventh Circuit agreed with,

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and that the Fourth Circuit agreed with. The other hand, the and

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means or provision excuse me and means
and gorsages and the dissent's position, But

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the and means or position was a
position that was agreed with by the Fifth

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Circuit, the Sixth Circuit, and
the Seventh Circuit. I mean, it's

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really very closely divided, and you've
got very prominent federal judges on both sides

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of this thing who can easily see
it both ways. But ultimately, you

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know, somebody's got to win.
What's the famous line from Justice Robert Jackson

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many years ago, he said that
the Supreme Court was not was not final

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because it's infallible. It's infallible because
it's final. So someone's got to make

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a final call here, and the
final call was in favor of viewing and

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as or, and it didn't mean
that mister Pulsifer was not eligible for safety

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valve relief. And I'm sorry to
say for the ten thousand similarly situated federal

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defendants, they too were not eligible
for safety valve relief. I keep saying

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Kagan, but I should mention that
the Kagan majority was an interesting majority because

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in addition to Justice Kagan, it
was the Chief Justice. It was Justice

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Barrett, Justice Cavanaugh, Justice Alito, and Justice Thomas. Ordinarily that's a

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group of conservatives, but they were
joined by Justice Kagan, who's viewed as

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a progressive on the Court. The
dissent similarly, kind of an unusual descent.

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It was Justice Gorsich, generally viewed
as a conservative, but joined by

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Justice Jackson and Justice Soda Mayor,
ordinarily viewed as progressives. I think it's

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really important to point this out because
a lot of people who are not lawyers

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or who don't follow the Supreme Court
very closely, assume that everything that comes

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out of the Court goes six'
three, and it's just a very traditional

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conservative progressive split. That is a
lot of the very hot button culture worry

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type cases that you read about in
the front page of the New York Times

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or the Wall Street Journal. But
you and I know, Kyle, that

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the court's work consists of lots of
interesting intellectual property and bankruptcy and in this

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case, criminal justice issues that don't
cut cleanly down these kinds of partisan lines.

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They're just actually really interesting and sophisticated
legal arguments on both sides, and

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that stuff doesn't always depend on what
your politics are or what your maybe to

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be more generous, what your ideological
priors about law are. Necessarily. Well,

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thank you so much for covering this
for us. I think this is

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a really fascinating topic because people don't
think of it in this sense all the

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time. Right, You said that
there were obviously implications for these ten thousand

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other defendants who are now no longer
eligible for the safety valve. Do you

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see that there being any other ramifications
because of this decision regarding other types of

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nebulous or vague laws that kind of
use the same distinction. So I was

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asked this question by someone recently,
and I said, there are two ways

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to think about it. The first
is that it's not going to have a

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lot of clear presidential value, because
the winning argument if it had been and

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means and let's just read the words, you know on their face, that

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would have a lot of presidential value. But the winning argument actually was sometimes

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and means or it depends on context. And that argument that well, sometimes

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it depends on context is not something
that has clear presidential value. There's always

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going to be different kinds of context. But I think one thing that could

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possibly it's a remote possibility, but
a real possibility, have some significant value

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down the line and significant implications is
justice's justice gore, such as a long

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discussion about something called the rule of
lenity. The rule of lenity is this

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very old principle in law. It's
old principle that goes back to British common

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law and is older than America itself. It is the idea that when you

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are interpreting a criminal statute and you're
not really sure how to interpret it,

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it could go this way or that
way, you should ultimately interpret it in

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favor of the individual and against the
government. And you do that because you

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live in a society that deeply values
individual liberty, that is skeptical of government

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power, that wants to encourage precision
in government drafting of laws and statutes.

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And so whenever it's a close call, whenever it seems like it's very nearly

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a tie, the tie goes to
the individual, not the government. So

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this is a very old principle.
It's called the rule of lenity. It's

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something that increasingly I think has been
disregarded in modern interpretation, but it's important

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canon of construction. It's actually written
about in a very important book called Reading

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Law by Justice Scalia and Brian Garner. Just about every lawyer I know has

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got Reading Law on their bookshelf minus
back there somewhere. And it is a

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principle that Justice Gorsich is trying very
hard to revive. He doesn't have a

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lot of support right now. He's
written about this in previous opinions. There

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was a case called Wudin versus Wuten
or Wutin. I can't remember if it

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was a dear a t in that
case, but versus the United States out

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of last term, where once again
he wrote about the rule of lenity,

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wrote about reviving it, wrote about
how the courts to take it more seriously,

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but he encountered some resistance. I
think Justice Kavanaugh, for reasons I

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don't particularly call at the moment in
that case, was skeptical of its application.

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I know that in this case the
justices in the majority were skeptical because

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they said, the rule of lenity
is something you get to if the original

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meaning is unclear, and they really
felt like it was pretty clear that in

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context here and meant or so they
didn't feel they had to get to that.

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But obviously Justice Gorsch and Jackson and
Soda may Or saw it differently.

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In fact, Gorsuch's I should say, he is pretty annoyed. In his

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dissent. He says, look,
there are three ways to address this case,

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and we're just disregarding all of them. The first is just look at

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the words on the page and means. And the second, which we should

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talk about for a second, is
look at the context. This came out

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of the first step back. This
was a legislation that was designed to alleviate

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the very harsh sentences that federal law
places on non violent drug offenders. That's

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what Congress was trying to do,
and that's what President Trump was trying to

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do when he signed the bill into
law. I mean, when you have

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the case involving a non violent drug
offender like mister Pulsifer, you really need

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to interpret it in the way that
you could interpret it, in the way

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that accords with the legislative intent.
I should say could, because I think

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the people on this call, Federal
Society members have a good understanding of why

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legislative intent and legislative history are limited. Justice Squier wrote a lot about that

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during his life, and in fact, I don't really think that's the best

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way to decide the case. I
think probably the plain text, and if

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that doesn't work for you, relying
on the rule of lenity make a lot

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of sense. But what Gorcitch was
saying was if you want to do plain

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text, if you want to do
relying on legislative history, or if you

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want to do just go with the
rule of lenity, any one of those

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would get you to the same result. And the majority is disregarding all three.

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So he was clearly irritated by it. I do wonder whether or not

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his cry into the wilderness in favor
of the rule of lenity is the kind

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of thing that eventually could be taken
more seriously by the entire court. You

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know, Justice Scalia wrote dissent after
descent after descent for decades before he really

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started changing minds, because he changed
the minds of law students, and changed

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the minds of new judges in the
on the Federal bench and ultimately on the

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Supreme Court, even changed the minds
of some colleagues who are with him for

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a while. There. That's the
kind of thing you're looking for in descent.

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Is this person making an argument that
could change our law in the future,

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even if it didn't win out in
this case, there's a possibility of

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it here. Well, thank you
so much for Grant for doing this with

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us. I think that was you
know, you really took this case that

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for a lot of people is a
bit confusing, and I think you really

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really brought some light to it.
And I wanted to thank you for joining

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us today. Yeah, thank you
for hosting me. Thank you for listening

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to this episode of SCO. Discust
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