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October 2, 2023

On first Monday in October, another round of previews for SCOTUS's starting sentencing case, Pulsifer v. US

After a rough weekend for US pro golfers and Ohio's pro football teams, I am glad that a new season officially kicks off today with the Supreme Court hearing its first oral arguments to start its October Term 2023.  Actually, the Term arguably got rolling Friday with cert grants in a dozen new cases (though only a couple involved criminal law issues), and also with this morning's lengthy new order list denying cert in hundreds of cases. 

But, for SCOTUS, the first oral argument on the first Monday in October is something like the throwing of the first pitch on baseball's opening day. (And, speaking of baseball, the MLB playoffs should keep October exciting even if SCOTUS does not.)  As I have noted recently, I am especially excited that SCOTUS's first case for argument is Pulsifer v. United States, a statutory interpretation case dealing with a sentencing provision of the FIRST STEP Act.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or."  

In this post last week, I noted a few preview pieces about the case, but now I have see a few more worth flagging:

From Lisa-Legalinfo, "SCOTUS Hears Argument Over Meaning Of “And” In First Step Act

From SCOTUSblog, "Mandatory minimums, payday lending, and voting rights in first session of Supreme Court term"

From Slate, "The Supreme Court’s First Case Is a Brutal Grammatical Test"

LawProf Aaron Tang authored the Slate commentary, and his closing sentiments seek to connect the (little?) Pulsifer case to the (big?) issues swirling around the Supreme Court at the start of a new Term (with links from original):

If the court wants to push back against the partisan trends in recent terms, it can heed the wise advice once offered by Judge Learned Hand, who remarked that “the spirit of liberty is the spirit which is not too sure that it is right.”

By humbly admitting uncertainty on the perplexing issue in Pulsifer, the court can apply a more promising approach to hard cases.  It can rule against whichever side would be best able to avoid the harm of a mistaken ruling — an approach I’ve called the “least harm principle” of judicial decision-making.

Indeed, criminal law already has a doctrine well suited to this principle. It is the “rule of lenity,” or the idea that where criminal statutes are susceptible to multiple reasonable interpretations, the court should adopt the defendant-friendly reading.

The best reason for this rule is that it is virtually always harder for criminal defendants to avoid the harm of mistakenly harsh criminal punishments than for the government to avoid the harm of lenient sentences.  Indeed, even if it loses this very case, the government would still have discretion to ask a trial judge to impose a harsher sentence on Pulsifer if it believes he is particularly dangerous.

In the end, the Pulsifer case will not be the most high-profile case the court decides this year.  But the case will provide important initial insights into how the justices are planning to respond to a disastrous summer for its public legitimacy — not to mention the costly mass incarceration crisis that is decimating our communities.  Here’s hoping it does so with a dose of humility.

A few prior related posts about SCOTUS Pulsifer case:

October 2, 2023 at 10:14 AM | Permalink



Ha ha. OT, but pretty funny.

Posted by: federalist | Oct 2, 2023 1:00:57 PM

I just came back from the argument. Close case. Unusual lineup, with (my guess) the two more libertarian conservatives, Gorsuch and Thomas, lining up with Sotomayor and Jackson (who is embarrassingly partisan) in the four-member minority favoring the criminal. Favoring the government will be the Chief, Alito, Kagan, Kavanaugh and Barrett. I think either Kagan or Kavanaugh will author the opinion.

The advocates were drop-dead brilliant and prepared. They were ready for everything and knew the record and relevant caselaw absolutely cold.

I came away with a better opinion both of the Court and the quality of the advocacy there. It's just one argument, but it was a doozie.

Posted by: Bill Otis | Oct 2, 2023 1:05:34 PM

One other note: Prof. Tang adopts the usual baloney that the Court's "legitimacy" = its adoption of the liberal policy result. Actually, legitimacy comes from following the law rather than from result-orientation. But when pro-criminal results are all you care about.......

Posted by: Bill Otis | Oct 2, 2023 1:11:19 PM

Bill, I am sorry, but the Court's failure to deal with the obvious politicization of the DOJ is a stain on the institution. And John Roberts is a real problem.

Posted by: federalist | Oct 2, 2023 3:46:58 PM


Here's something interesting . . . . discovery may turn out to be fascinating.

Posted by: federalist | Oct 2, 2023 4:41:37 PM

federalist --

In my view, the Court is not charged with oversight of DOJ or the executive branch generally. The electorate is. In a system of independent, separated and co-equal branches, we can't have any one branch supervising another branch. Besides that, when the worm turns on SCOTUS, as eventually it will, conservatives won't like it at all when a more liberal Court starts thinking it gets to tell the tale about what happens inside DOJ.

Roberts is not Scalia, true, but on the whole does more good than bad, see, e.g., his majority opinion in the affirmative action case, his dissenting opinion in Obergefell (which took guts in this town), and his consistent support for the DP.

Posted by: Bill Otis | Oct 2, 2023 8:57:22 PM

Bill, the DOJ brings charges on an obviously unequal basis--courts issue criminal judgments. Sorry. Your absolution doesn't work. And by the by, when the Court overturned Trump's questionnaire on the census, that ship sailed.

What is happening inside DOJ is a travesty, and the courts have gone along with it by issuing harsh sentences to many J6 defendants. Sorry, the federal courts don't get to skip out on accountability here. And John Roberts saying that there is no such thing as a GOP judge or a 'rat judge is just so full of it. The LAST thing judges should be doing is out and out lying to the American people. And recall also that the FISA Court didn't do squat about all the lying by the DOJ--it's a stain on the federal court system.

Posted by: federalist | Oct 3, 2023 12:58:10 PM

Here's another one of Doug's fave prosecutors: https://www.powerlineblog.com/archives/2023/10/americas-worst-prosecutor.php

Posted by: federalist | Oct 3, 2023 1:55:47 PM

federalist: your off-topic feelings are tiresome enough, but the silly misrepresentations is trolling at its worse. I do not even know the work of the local prosecutor discussed in the article you link, and I am sure I have never discussed her work at all anywhere. But, yet again, I suppose FFM -- even when your ranting/linking has no connection to reality or what gets actually discussed here.

Posted by: Doug B | Oct 3, 2023 2:17:39 PM

So, can I assume that you think this prosecutor is a horrendous person? Or will you continue to be an ostrich when it comes to Soros prosecutors?

Posted by: federalist | Oct 3, 2023 2:50:39 PM

federalist, I almost never comment on a specific issue or a person without having information about that issue or person. That's why I very rarely comment on any state/local prosecutors or the work they do (or do not do). Similarly, I almost never comment on any state/local defense attorneys or judges or parole boards.

Because I have lots of responsibilities to students and others, I barely have time to keep up with my email, let alone time to read and research all the off-topic stuff you are strangely keen to continue posting/linking in the comments. And you should assume I am just ignoring your off-topic links rather than making any substantive assumptions from my silence, though I usually will make an effort to respond to your misrepresentations (which itself is surely a poor use of time, and I fear risks you making further misguided assumptions or misrepresentations).

I do sometimes wonder, federalist, how your day-to-day practice gives you such time to opine in blog comments since I do not think you practice in this arena (and you seem to comment mostly during the work day). Then again, you never actual try to write up your opining in a serious and rigorous way, and you hide behind a pen name. If you have extra time, and do not want to spend it writing up your ideas with academic rigor (or even doing a substack, perhaps Bill's), you should consider taking up (more?) pro bono cases on behalf of your causes. Persistently linking to off-topic articles in the comments of a blog does not seem like an especially wise use of time if you really think you have important points to make or causes to advance.

Posted by: Doug B | Oct 3, 2023 5:24:58 PM

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