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April 17, 2012

Early report on SCOTUS oral arguments in FSA pipeline cases

Thanks to this post by Lyle Denniston at SCOTUSblog, headlined "Argument recap: A dilemma over race," we can all get a quick account of the SCOTUS oral arguments this morning in Hill and Dorsey. Here is how the post begins:

A racial issue in criminal sentencing that has bedeviled all three branches of the federal government for a quarter century took a little time to emerge in a Supreme Court argument on Tuesday, but when it did, it had a noticeable impact on the Justices.  After spending much of the first half-hour focusing on the meaning of two federal statutes, one passed in 1871, the other in 2010, the Court appeared strongly inclined to limit those who could benefit from Congress’s keen desire to narrow the racial disparity in sentencing for cocaine crimes.

But the tone changed as the Justices turned their focus to the prospect of perpetuating that racial disparity for at least a few years longer. That began to look quite unattractive to the Court.

I have a long plane ride this afternoon during which I will poor over the full argument transcript (which is now available at this link), and I am certain I will have a lot more to say about what the Justices had to say today later tonight.

UPDATE A cranky internet connection while on the road has prevented me from finding time to comment more on the oral arguments in these cases, but How Appealing has a collection of media reports on the argument available at this link.  With luck, I hope still to be able to discuss these cases more before the Justices themselves do at this Friday's private conference.

April 17, 2012 at 02:46 PM | Permalink


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It's strange for Denniston to highlight the racial aspects of this. For starters, I've never heard anyone argue that 100:1 is a racial problem but 18:1 is not a racial problem. Although Justices Kagan and Sotomayor seemed to want to just posit that the FSA "cures" a racial concern, other Justices did not seem to accept that idea. On the substance, the Justices spent a far greater amount of time with the statutory issues than with racial arguments.

This case involves a basic statutory interpretation question. Bringing race into the case does not seem, to me, to help resolve it.

FWIW, I'm a defense attorney, and I have a case pending in the 6th on this issue. We're waiting for the Supremes to decide Hill/Dorsey.

Posted by: Mark Pickrell | Apr 17, 2012 8:56:01 PM

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