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October 3, 2023

Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case

Regular readers know I have been talking up SCOTUS's first case for oral argument this Term, Pulsifer v. United States, a statutory interpretation case dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  Perhaps because it was the only case on the argument calendar yesterday, the Justice spent almost a full two hours debating the meaning of the word "and" with two capable counsel.  The full oral argument recording and transcript are available here at the SCOTUS website. 

Here are some press discussion of the oral argument in Pulsifer and surrounding realities:

From Courthouse News Service, "Courthouse Rock: Justices play conjunction junction on first day of term"

From The Hill, "Supreme Court opens term with case on prison terms for drug offenders"

From Mother Jones, "Does 'And' Mean 'And'? Or 'Or'? The Supreme Court Will Decide."

From Roll Call, “Congressional conjunction turns Supreme Court argument into grammar class; Justices weigh if ‘and’ means ‘and’ in a criminal sentencing law"

From the New York Times, "On First Day of New Term, Supreme Court Hears Debate Over First Step Act

From Slate, "The Supreme Court’s Oddest Pairing Comes out Swinging on Behalf of Criminal Defendants"

Based on a too-quick listen to the full oral argument, I am inclined to guess that this case will end up with a 5-4 vote in favor of the government's proposed statutory interpretation that would restrict the reach of the FIRST STEP Act's expansion of the statutory safety valve exception to drug mandatory minimum sentencing terms.  But I would not entirely discount the possibility that the four Justices who seemed most favorable toward the defendant's reading, particularly Justices Gorsuch and Jackson, might find a way to peel off a key fifth vote (especially since the Chief was pretty quiet throughout and Justice Kagan hinted toward the end that she might be less sure than she seemed at the outset).  

I suppose I can say with certainty that this case will not be resolved 9-0 and that the ultimate opinions likely will be of great interest to statutory interpretation fans as well as to sentencing fans.  I also would guess that we will get ruling in early 2024, though this one might take quite a while if lots of Justices decide to write on lots of broader statutory interpretation topics (like the reach of the rule of lenity and/or the use of legislative history and/or corpus linguistics).  Fun times!

October 3, 2023 at 01:31 PM | Permalink


Doug --

I see that once again great minds think alike. As I said yesterday, "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."

Jackson isn't going to peel off anyone because she's too ideological. Gorsuch is another story, but I doubt he has the persuasive skills Brennan was said to have. One is never sure with Roberts, but he's pretty reliably center-right, and the center-right vote here is with the government.

Both lawyers were terrific. I'd love to be that good. And both are members of the Federalist Society.

Posted by: Bill Otis | Oct 3, 2023 5:19:19 PM

I think there is a chance, Bill, for Justice Jackson to try to get Justice Kagan (especially if Gorsuch pitches in with the effort). That said, I could also see some of the government's side puling over Thomas to get to six. Should be really interest to see what gets covered and the ultimate outcome.

Posted by: Doug B | Oct 3, 2023 6:01:38 PM

The only ones I'm sure of are Jackson, Sotomayor and Gorsuch for the defendant and Kavanaugh and Alito for the government. Everyone else seemed to be at least a bit in play, but my best present guess is the same as yours.

Kagan is really smart and down to earth. Thomas asked the first question, which I've never seen him do. Kavanaugh was ready with the answer to Jackson's point about legislative history of earlier versions of the bill. Barrett is also really smart and pays attention. She also looks like a college cheerleader. Why didn't I get judges that look like that?

Posted by: Bill Otis | Oct 3, 2023 9:36:45 PM

Bill, do you think, whatever the outcome, that the opinions will speak (at length) to topics like the rule of lenity and corpus linguistics? Whether this ends up being a big or small opinion is another matter of uncertainty and intrigue.

Posted by: Doug B | Oct 3, 2023 9:57:35 PM

Doug --

I don't think corpus linguistics is going to get much attention. And if I were on the Left, I would be pretty cautious about starting a fight about the rule of lenity, since the present Court is unlikely to have a lot of good stuff to say about it.

Posted by: Bill Otis | Oct 4, 2023 11:49:45 AM

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