Imagine you were new to Europeia, and someone sent you a message saying: "The routes to success in Europeia are (1) becoming a master legislator; (2) writing great articles in the EBC; and (3) Recruiting like crazy!". Is the person telling you that you need to do all three of those things to be successful in Euro, or are they telling you that any of those three paths can get you there? In this example it is fairly clear that the "and" is actually not meaning "AND" in the traditional sense of joining these terms together, but is instead serving more like the word "or." You could in fact replace the "and" with "or" and it would be very clear you meant that each of the routes was an independent avenue to be successful. And the context of the sentence suggests this as well - the sentence refers not to a single path but to multiple paths. A textualists first instinct, then, might be to follow the exact verbiage used in a statute ... but words don't always mean what they seem to mean at first glance, and this example shows pretty clearly that "and" can indeed mean "or" in everyday language.
This is the dilemma that faced the Supreme Court today as it opened October Term 2023 with Pulsifer v. United States, a case asking what the meaning of "and" as used in a statute is. Yep, it was exactly as much of a barn burner as it sounds! To give you an idea of just how in the weeds this case got with grammar and the meaning of language, this quote from Justice Alito serves nicely:
The case centers on the application of mandatory minimum sentencing requirements. Starting in the 1980s, Congress started taking interest in the disparity in sentencing across the various federal courts. Recognizing that the penalty you face in a federal court should depend less on the geography of where you happened to have committed the crime and more on the nature of the crime itself as well as your individual criminal history, Congress created the United States Sentencing Commission and instructed the commission to issue a set of Sentencing Guidelines. Over the years these were occasionally modified via legislation, but as initially conceived and promulgated, the guidelines were mandatory and binding on district court judges. In 2005, the Supreme Court stripped away the mandatory requirement as violative of the 6th Amendment in United States v. Booker (with further modifications and limitations being clarified in other cases). As a result, the guidelines are now truly guidelines - although while judges are now free to depart from the guidelines if they believe it is suitable to do so, such deviation is relatively uncommon.
In 2018, Congress passed and President Trump signed the First Step Act. While it included numerous reforms, for our purposes the important one involved a modification of the rules surrounding which defendants were eligible for sentences below the mandatory minimums called for in the sentencing guidelines. Again, while Booker rendered the guidelines advisory, they tend to be followed quite closely by judges, especially in the context of mandatory minimums. The sentencing guidelines already included a provision (referred to as a "safety valve") designed to open up downward departures from the mandatory minimums in certain situations. the First Step Act intended to make this downward departure available to more offenders, thus reducing the length of sentences overall.
The provision in question is one of several qualifying requirements for the safety valve to apply, and it reads:
18 U.S.C. § 3553(f)(1).
I have highlighted the "and" in question above for you - it's at the end of (B) if you're having trouble finding it. We don't need to go into too much detail on this - it can get confusing - but what you need to know is that the Petitioner-Defendant in this case is a man found guilty of a drug offense who wants to take advantage of the mandatory minimum waiver available in 3553(f)(1) and who is arguing that he is eligible unless all THREE of the conditions in the above statute are true - in other words, the "and" is fully joining all three of these provisions together in his argument, and all three must be true for him to be denied the mandatory minimum waiver. Alternatively, the Respondent-Prosecution is arguing that "and" in this context means "or" - and that if the Petitioner has any of A, B, or C in his history then the waiver is denied and the mandatory minimum applies.
Now, on to the argument itself. The Petitioner is primarily arguing that if Congress had meant to say "or" it could have done so, and that the Senate's legislative drafting guide specifies that if "or" is intended in this type of sentence construction, "or" is not just preferred but virtually required by the style guide. Further, to find that the "and" means "or" in this case requires either reading in the word "and" or the phrase "does not have" to be inferred at least 3 times. Much of the argument involving the Petitioner centers on whether understanding "and" to mean "or" is grammatically correct (answer - likely yes, we do it all the time and there is an amicus that agrees with this).
The parties both argued over the context in which the word "and" is used, with the Respondent arguing that interpreting the provision as the Petitioner does would largely render the provision useless (over 98% of offenders would qualify for the mandatory minimum reduction). Further it would produce an "anomalous" result in that an offender could have multiple 3 point violations as defined in the statute, but no 2 point violent violations, and therefore would be eligible for a reduction below the mandatory minimum while, alternatively, a person with one 3 point violation and 1 violent 2 point violation would be barred from receiving the waiver - a result that means a defendant would actually be in the position of rooting for a more serious conviction so as to remain eligible for the mandatory minimum waiver. This discussion caused Justice Kagan to get off a fairly interesting line during the Petitioner's argument in chief:
Justice Gorsuch spent a lot of his time talking about textualism and the canon of absurdity, but neither counsel really seemed to want to go in that direction. While the Respondent was essentially arguing a mild form of absurdity argument by suggesting that the Petitioner's interpretation produced an absurd result, only the Justices seemed at all interested in using those words. Perhaps because they weren't convinced it even WAS that absurd - several justices noted that the Petitioner's argument might produce a different - maybe even a BAD - policy result, but that it was at least a plausible reading of the text. The Respondent didn't seem to want to push for absurdity to avoid the Justices pushing back against him, but also didn't want to credit the Petitioner's argument with having any possible merit, leaving the Respondent in the awkward position of having to try to parry back arguments from several justices on these grounds.
Regardless of whether one viewed this as a textualist argument or not, the Justices seemed relatively clear that the label didn't matter and that they had a job to do aside from ideology. Justice Alito, for instance, in one of the few statements he's ever made that I actually agree with, said:
Meanwhile, Justice Gorsuch, seeking a way to understand the Respondent's argument wrung a concession from the government's attorney that it wasn't really practicing textualism ... leading to a couple of interesting acknowledgements:
This led to the government attorney flailing around a bit and suggesting that he was arguing for a traditional cannon of construction that the court uses all the time, although he didn't have a chance to name it before Justice Gorsuch jumped in with the following:
And with that the government likely lost Gorsuch's vote ... as he responded by thanking the government for admitting that they were making a Purposivist argument ... which is just a policy argument in disguise, and likely not something Gorsuch will favor.
It seems the government reading may struggle with several of the conservative justices, as Justice Thomas also got in a bit of a zinger at the government's expense:
Ouch ... he went on to praise the Petitioner for at least having an argument that he viewed as more "natural" in context.
Finally, it should be noted that there was a discussion about the Rule of Lenity and whether it should play a role in this case. A simple explanation of the Rule of Lenity is that ambiguous provisions should be interpreted in a way that favors a defendant. However, this isn't necessarily the type of statute where the rule of lenity applies - it isn't a provision that explicitly carries a penalty, and it isn't a provision that would enhance a penalty. Those are the traditional areas where the rule of lenity applies. Justices Sotomayor and Kagan are particularly interested in this question here, and Justice Jackson in particular pushed back on the idea that lenity shouldn't apply here since the provision has to do with sentencing. The government argues that normally lenity only applies when a provision adds enhancements, not just when a provision would reduce a sentence. This is, in a way, a distinction without a difference as clearly whether the provision applies will have a significant impact on the defendant's sentence.
Ultimately, this case is likely to come down to whether the justices feel they have anything other than just policy arguments to favor one side or the other. I am very much uncertain where this will come down, so this is a crapshoot, but I'm going to suggest that you'll have a 6-3 result in favor of the Petitioner, with the justices on the left joining with the justices on the right for completely different reasons. Look for a fairly narrow main decision with a couple of concurrences in the judgment, with the more "middle" Justices - maybe Roberts, Kagan, and Kavanaugh - dissenting in favor of the government with a more pragmatic view of the case.
A couple other quick notes:
(1) The Court is so polite now - both the Petitioner and Respondent got a chance to finish their introductions and ask the Court for questions ... that never used to happen;
(2) Justice Jackson was, as if often the case, the most frequent contributor in the case with 32 "interventions" as I count them. Chief Justice Roberts was - perhaps surprisingly - the quietest with just 3 interventions (this does not count his traffic directing comments indicating whose turn it is to speak - just his substantive interventions in the case);
(3) The Petitioner's attorney got the only two "Laughter" acknowledgments from the transcriber, once when telling Justice Alito that a question about characterizing Congress was a loaded question, and once when telling Justice Gorsuch that his summary of the case as he saw it was "better than my introduction."
One down, who knows how many more to go!
This is the dilemma that faced the Supreme Court today as it opened October Term 2023 with Pulsifer v. United States, a case asking what the meaning of "and" as used in a statute is. Yep, it was exactly as much of a barn burner as it sounds! To give you an idea of just how in the weeds this case got with grammar and the meaning of language, this quote from Justice Alito serves nicely:
The case centers on the application of mandatory minimum sentencing requirements. Starting in the 1980s, Congress started taking interest in the disparity in sentencing across the various federal courts. Recognizing that the penalty you face in a federal court should depend less on the geography of where you happened to have committed the crime and more on the nature of the crime itself as well as your individual criminal history, Congress created the United States Sentencing Commission and instructed the commission to issue a set of Sentencing Guidelines. Over the years these were occasionally modified via legislation, but as initially conceived and promulgated, the guidelines were mandatory and binding on district court judges. In 2005, the Supreme Court stripped away the mandatory requirement as violative of the 6th Amendment in United States v. Booker (with further modifications and limitations being clarified in other cases). As a result, the guidelines are now truly guidelines - although while judges are now free to depart from the guidelines if they believe it is suitable to do so, such deviation is relatively uncommon.
In 2018, Congress passed and President Trump signed the First Step Act. While it included numerous reforms, for our purposes the important one involved a modification of the rules surrounding which defendants were eligible for sentences below the mandatory minimums called for in the sentencing guidelines. Again, while Booker rendered the guidelines advisory, they tend to be followed quite closely by judges, especially in the context of mandatory minimums. The sentencing guidelines already included a provision (referred to as a "safety valve") designed to open up downward departures from the mandatory minimums in certain situations. the First Step Act intended to make this downward departure available to more offenders, thus reducing the length of sentences overall.
The provision in question is one of several qualifying requirements for the safety valve to apply, and it reads:
18 U.S.C. § 3553(f)(1).
I have highlighted the "and" in question above for you - it's at the end of (B) if you're having trouble finding it. We don't need to go into too much detail on this - it can get confusing - but what you need to know is that the Petitioner-Defendant in this case is a man found guilty of a drug offense who wants to take advantage of the mandatory minimum waiver available in 3553(f)(1) and who is arguing that he is eligible unless all THREE of the conditions in the above statute are true - in other words, the "and" is fully joining all three of these provisions together in his argument, and all three must be true for him to be denied the mandatory minimum waiver. Alternatively, the Respondent-Prosecution is arguing that "and" in this context means "or" - and that if the Petitioner has any of A, B, or C in his history then the waiver is denied and the mandatory minimum applies.
Now, on to the argument itself. The Petitioner is primarily arguing that if Congress had meant to say "or" it could have done so, and that the Senate's legislative drafting guide specifies that if "or" is intended in this type of sentence construction, "or" is not just preferred but virtually required by the style guide. Further, to find that the "and" means "or" in this case requires either reading in the word "and" or the phrase "does not have" to be inferred at least 3 times. Much of the argument involving the Petitioner centers on whether understanding "and" to mean "or" is grammatically correct (answer - likely yes, we do it all the time and there is an amicus that agrees with this).
The parties both argued over the context in which the word "and" is used, with the Respondent arguing that interpreting the provision as the Petitioner does would largely render the provision useless (over 98% of offenders would qualify for the mandatory minimum reduction). Further it would produce an "anomalous" result in that an offender could have multiple 3 point violations as defined in the statute, but no 2 point violent violations, and therefore would be eligible for a reduction below the mandatory minimum while, alternatively, a person with one 3 point violation and 1 violent 2 point violation would be barred from receiving the waiver - a result that means a defendant would actually be in the position of rooting for a more serious conviction so as to remain eligible for the mandatory minimum waiver. This discussion caused Justice Kagan to get off a fairly interesting line during the Petitioner's argument in chief:
Justice Gorsuch spent a lot of his time talking about textualism and the canon of absurdity, but neither counsel really seemed to want to go in that direction. While the Respondent was essentially arguing a mild form of absurdity argument by suggesting that the Petitioner's interpretation produced an absurd result, only the Justices seemed at all interested in using those words. Perhaps because they weren't convinced it even WAS that absurd - several justices noted that the Petitioner's argument might produce a different - maybe even a BAD - policy result, but that it was at least a plausible reading of the text. The Respondent didn't seem to want to push for absurdity to avoid the Justices pushing back against him, but also didn't want to credit the Petitioner's argument with having any possible merit, leaving the Respondent in the awkward position of having to try to parry back arguments from several justices on these grounds.
Regardless of whether one viewed this as a textualist argument or not, the Justices seemed relatively clear that the label didn't matter and that they had a job to do aside from ideology. Justice Alito, for instance, in one of the few statements he's ever made that I actually agree with, said:
Meanwhile, Justice Gorsuch, seeking a way to understand the Respondent's argument wrung a concession from the government's attorney that it wasn't really practicing textualism ... leading to a couple of interesting acknowledgements:
This led to the government attorney flailing around a bit and suggesting that he was arguing for a traditional cannon of construction that the court uses all the time, although he didn't have a chance to name it before Justice Gorsuch jumped in with the following:
And with that the government likely lost Gorsuch's vote ... as he responded by thanking the government for admitting that they were making a Purposivist argument ... which is just a policy argument in disguise, and likely not something Gorsuch will favor.
It seems the government reading may struggle with several of the conservative justices, as Justice Thomas also got in a bit of a zinger at the government's expense:
Ouch ... he went on to praise the Petitioner for at least having an argument that he viewed as more "natural" in context.
Finally, it should be noted that there was a discussion about the Rule of Lenity and whether it should play a role in this case. A simple explanation of the Rule of Lenity is that ambiguous provisions should be interpreted in a way that favors a defendant. However, this isn't necessarily the type of statute where the rule of lenity applies - it isn't a provision that explicitly carries a penalty, and it isn't a provision that would enhance a penalty. Those are the traditional areas where the rule of lenity applies. Justices Sotomayor and Kagan are particularly interested in this question here, and Justice Jackson in particular pushed back on the idea that lenity shouldn't apply here since the provision has to do with sentencing. The government argues that normally lenity only applies when a provision adds enhancements, not just when a provision would reduce a sentence. This is, in a way, a distinction without a difference as clearly whether the provision applies will have a significant impact on the defendant's sentence.
Ultimately, this case is likely to come down to whether the justices feel they have anything other than just policy arguments to favor one side or the other. I am very much uncertain where this will come down, so this is a crapshoot, but I'm going to suggest that you'll have a 6-3 result in favor of the Petitioner, with the justices on the left joining with the justices on the right for completely different reasons. Look for a fairly narrow main decision with a couple of concurrences in the judgment, with the more "middle" Justices - maybe Roberts, Kagan, and Kavanaugh - dissenting in favor of the government with a more pragmatic view of the case.
A couple other quick notes:
(1) The Court is so polite now - both the Petitioner and Respondent got a chance to finish their introductions and ask the Court for questions ... that never used to happen;
(2) Justice Jackson was, as if often the case, the most frequent contributor in the case with 32 "interventions" as I count them. Chief Justice Roberts was - perhaps surprisingly - the quietest with just 3 interventions (this does not count his traffic directing comments indicating whose turn it is to speak - just his substantive interventions in the case);
(3) The Petitioner's attorney got the only two "Laughter" acknowledgments from the transcriber, once when telling Justice Alito that a question about characterizing Congress was a loaded question, and once when telling Justice Gorsuch that his summary of the case as he saw it was "better than my introduction."
One down, who knows how many more to go!
Last edited:
