Welcome to scot Discast, a project of the Federalist Society for Law and Public
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All expressions are those of the speaker. Hello, and welcome to SCO Discast.
I'm your host, Kyle hammernis On, behalf of the Faculty division of
the Federalist Society. We are here today to discuss Pulsifer versus United States,
in which the Supreme Court issued a sixth through decision on March fifteenth, twenty
twenty four. We are joined today by Verkrant Ready bukarant Is, a senior
fellow at Stand Together Trust specializing in the area of criminal justice reform. And
with that, I like to turn things over to our guest to discuss the
overview of the case and the Court's decision. Well, thanks so much,
Kyle. This is a really fun case to talk about. It's the kind
of case that lawyers just love, and it's the kind of case that maybe
explains why non lawyers hate lawyers so much. The entire case is about determining
whether or not the word and means and or whether or not the word and
means or. You might think that sounds completely insane, when would and ever
mean or? But there's a plausible argument, and I'll give it. But
first let's start with a little bit of the backstory here. The case concerns
a man named Mark Pulsper who was busted and convicted for drug crimes in Iowa,
meth amphetamine if I remember correctly, and he had a bit of a
record, and he was subject to a federal mandatory minimum sentence, and that
sentence would have been up to fifteen years behind bars. Now, there were
some extenuating circumstances with him, and there is excuse me, a safety valve
provision that allows judges to depart from that mandatory minimum if they think that,
well, this is a unique case, and you know, mister Pulspers not
necessarily the kind of guy that you'd want to put away for fifteen years.
That's not penealogically necessary. But some people are not eligible for the safety valve.
You're not eligible for the safety valve if you have a particular kind of
criminal history. We don't need to go into the details of what the criminal
history provisions are for the sake of this case. Even Justice Kagan, in
her majority opinions said, just to make things simple, let's just say that
if you have A, B and C, you are exempt from the safety
valve protection. Now, the question is not what A means, what B
means, or what C means. It's what and means when you say A,
B, and C. And this matters. It matters big time because
what mister Pulsper was saying was that we all agree that I did A,
and we all agree that I did B, but I didn't do C.
We all agree on that also, And because I didn't do C, this
doesn't apply to me. I'm exempt. But the other side is saying,
no, no, no, no, you did A and you did B
and that's adequate. And we don't even have to get into the C portion
of it. And this matters big time because again he's subject to a fifteen
year mandatory minimum sentence. It also matters for people beyond him because this entire
provision comes out of the twenty eighteen federal criminal Justice reform called the First Step
Act, and there are ten thousand federal defendants who are in a similar position
to mister Pulsifer, and they were obviously watching this case very closely to figure
out, Okay, what's the court going to say, does A mean and?
Or does and mean? Or let's dig into that a little bit,
because I think listeners are probably already going, how is this even possible?
What have we been talking about for the last five minutes without getting into this
completely bizarre question. You probably think that if I were to say, Kyle,
I'm making a salad, can you run to the store and pick up
spinach, tomatoes, and carrots? That means pick up all three things,
spinach, tomatoes, and carrots. If you come home with just one item
or two items, you didn't get the order correct, right. That seems
very obvious to everybody. And this is more or less the case that mister
Paulsper and the dissenters actually this opinion are making Justice Kagan and the majority said,
well, it's not really that simple, and we can all come up
with examples where and actually means or in fact, she says, I'll pull
one right out of the Constitution. There's a provision of the Constitution which probably
everybody on this call is familiar with that says that the youjudicial power power an
Article three, shall extend to all cases arising under this Constitution, the laws
of the United States, and treaties. Everybody understands that what that means is
that a case has got to come out of the Constitution, out of the
various laws of the United States, or out of treaties. It doesn't mean
that a case has to be under all three things simultaneously. That be completely
absurd. There are very few things like that in the first place. Everybody
gets that, and that's really not even any kind of a point of debate.
So there are cases she and the majority argue in which and can mean
or. And in this particular case, she thinks it's plausible that and means
or, which is what the government was arguing. So mister Pulsifer comes back
and argues, no, there are instances where you have a negation where you're
speaking in the negative, where it's clear that and means and. And the
example provided here is suppose you say don't drink and drive. Everybody understands that
don't drink and drive does not mean don't ever drink and don't ever drive.
It means, don't drink and drive simultaneously. Don't do those two things together.
We're in a podcast that doesn't make sense that I'm gesturing with my hands,
but I am to say, these are two things that happen simultaneously.
That's what don't drink and drive means. But you know, this entire opinion
is almost like a prize fight, and two heavyweights are just going back and
forth against each other, coming up with hypothetical after hypothetical to counter the other
one's hypothetical. And here Justice Kagan comes right back against the Descent, which
was written by Justice Gorsich and says, No, you can think of negations
that work in the way that I'm talking about. So, for example,
suppose I met someone's parents and I said I didn't like his mother and father.
That doesn't mean I didn't like his mother separately and I didn't like his
father separately. But as long as the two of them were take him just
fine. No, when I say I didn't like his mother and father,
that means I didn't like his parents period, whether they were separate or whether
they were together. They go back and forth like this, hypothetical after hypothetical
after hypothetical. It's actually just fascinating to read, and it's really if you're
interested in linguistics. A number of linguists actually submitted an amicus brief in this
case. It's just so interesting to think through the hypotheticals. And there are
perfectly plausible cases on both sides of this. The and means and position which
the government argued and which Justice Kagan and the majority agreed with, was also
a position that the Eighth Circuit agreed with, that the Eleventh Circuit agreed with,
and that the Fourth Circuit agreed with. The other hand, the and
means or provision excuse me and means and gorsages and the dissent's position, But
the and means or position was a position that was agreed with by the Fifth
Circuit, the Sixth Circuit, and the Seventh Circuit. I mean, it's
really very closely divided, and you've got very prominent federal judges on both sides
of this thing who can easily see it both ways. But ultimately, you
know, somebody's got to win. What's the famous line from Justice Robert Jackson
many years ago, he said that the Supreme Court was not was not final
because it's infallible. It's infallible because it's final. So someone's got to make
a final call here, and the final call was in favor of viewing and
as or, and it didn't mean that mister Pulsifer was not eligible for safety
valve relief. And I'm sorry to say for the ten thousand similarly situated federal
defendants, they too were not eligible for safety valve relief. I keep saying
Kagan, but I should mention that the Kagan majority was an interesting majority because
in addition to Justice Kagan, it was the Chief Justice. It was Justice
Barrett, Justice Cavanaugh, Justice Alito, and Justice Thomas. Ordinarily that's a
group of conservatives, but they were joined by Justice Kagan, who's viewed as
a progressive on the Court. The dissent similarly, kind of an unusual descent.
It was Justice Gorsich, generally viewed as a conservative, but joined by
Justice Jackson and Justice Soda Mayor, ordinarily viewed as progressives. I think it's
really important to point this out because a lot of people who are not lawyers
or who don't follow the Supreme Court very closely, assume that everything that comes
out of the Court goes six' three, and it's just a very traditional
conservative progressive split. That is a lot of the very hot button culture worry
type cases that you read about in the front page of the New York Times
or the Wall Street Journal. But you and I know, Kyle, that
the court's work consists of lots of interesting intellectual property and bankruptcy and in this
case, criminal justice issues that don't cut cleanly down these kinds of partisan lines.
They're just actually really interesting and sophisticated legal arguments on both sides, and
that stuff doesn't always depend on what your politics are or what your maybe to
be more generous, what your ideological priors about law are. Necessarily. Well,
thank you so much for covering this for us. I think this is
a really fascinating topic because people don't think of it in this sense all the
time. Right, You said that there were obviously implications for these ten thousand
other defendants who are now no longer eligible for the safety valve. Do you
see that there being any other ramifications because of this decision regarding other types of
nebulous or vague laws that kind of use the same distinction. So I was
asked this question by someone recently, and I said, there are two ways
to think about it. The first is that it's not going to have a
lot of clear presidential value, because the winning argument if it had been and
means and let's just read the words, you know on their face, that
would have a lot of presidential value. But the winning argument actually was sometimes
and means or it depends on context. And that argument that well, sometimes
it depends on context is not something that has clear presidential value. There's always
going to be different kinds of context. But I think one thing that could
possibly it's a remote possibility, but a real possibility, have some significant value
down the line and significant implications is justice's justice gore, such as a long
discussion about something called the rule of lenity. The rule of lenity is this
very old principle in law. It's old principle that goes back to British common
law and is older than America itself. It is the idea that when you
are interpreting a criminal statute and you're not really sure how to interpret it,
it could go this way or that way, you should ultimately interpret it in
favor of the individual and against the government. And you do that because you
live in a society that deeply values individual liberty, that is skeptical of government
power, that wants to encourage precision in government drafting of laws and statutes.
And so whenever it's a close call, whenever it seems like it's very nearly
a tie, the tie goes to the individual, not the government. So
this is a very old principle. It's called the rule of lenity. It's
something that increasingly I think has been disregarded in modern interpretation, but it's important
canon of construction. It's actually written about in a very important book called Reading
Law by Justice Scalia and Brian Garner. Just about every lawyer I know has
got Reading Law on their bookshelf minus back there somewhere. And it is a
principle that Justice Gorsich is trying very hard to revive. He doesn't have a
lot of support right now. He's written about this in previous opinions. There
was a case called Wudin versus Wuten or Wutin. I can't remember if it
was a dear a t in that case, but versus the United States out
of last term, where once again he wrote about the rule of lenity,
wrote about reviving it, wrote about how the courts to take it more seriously,
but he encountered some resistance. I think Justice Kavanaugh, for reasons I
don't particularly call at the moment in that case, was skeptical of its application.
I know that in this case the justices in the majority were skeptical because
they said, the rule of lenity is something you get to if the original
meaning is unclear, and they really felt like it was pretty clear that in
context here and meant or so they didn't feel they had to get to that.
But obviously Justice Gorsch and Jackson and Soda may Or saw it differently.
In fact, Gorsuch's I should say, he is pretty annoyed. In his
dissent. He says, look, there are three ways to address this case,
and we're just disregarding all of them. The first is just look at
the words on the page and means. And the second, which we should
talk about for a second, is look at the context. This came out
of the first step back. This was a legislation that was designed to alleviate
the very harsh sentences that federal law places on non violent drug offenders. That's
what Congress was trying to do, and that's what President Trump was trying to
do when he signed the bill into law. I mean, when you have
the case involving a non violent drug offender like mister Pulsifer, you really need
to interpret it in the way that you could interpret it, in the way
that accords with the legislative intent. I should say could, because I think
the people on this call, Federal Society members have a good understanding of why
legislative intent and legislative history are limited. Justice Squier wrote a lot about that
during his life, and in fact, I don't really think that's the best
way to decide the case. I think probably the plain text, and if
that doesn't work for you, relying on the rule of lenity make a lot
of sense. But what Gorcitch was saying was if you want to do plain
text, if you want to do relying on legislative history, or if you
want to do just go with the rule of lenity, any one of those
would get you to the same result. And the majority is disregarding all three.
So he was clearly irritated by it. I do wonder whether or not
his cry into the wilderness in favor of the rule of lenity is the kind
of thing that eventually could be taken more seriously by the entire court. You
know, Justice Scalia wrote dissent after descent after descent for decades before he really
started changing minds, because he changed the minds of law students, and changed
the minds of new judges in the on the Federal bench and ultimately on the
Supreme Court, even changed the minds of some colleagues who are with him for
a while. There. That's the kind of thing you're looking for in descent.
Is this person making an argument that could change our law in the future,
even if it didn't win out in this case, there's a possibility of
it here. Well, thank you so much for Grant for doing this with
us. I think that was you know, you really took this case that
for a lot of people is a bit confusing, and I think you really
really brought some light to it. And I wanted to thank you for joining
us today. Yeah, thank you for hosting me. Thank you for listening
to this episode of SCO. Discust Go Discussed is the project of the Federalists
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