Last week’s oral arguments in Plain English

By Lisa Tucker
on Apr 8, 2010 at 1:45 pm

Because there are no arguments or opinions at the Court this week, we thought that it might be a good day to catch up on last week’s oral arguments in Plain English.

The arguments were many (six) and varied (everything from sentencing law to double jeopardy to securities fraud). 

In Barber v. Thomas, the Court engaged in a tough process of statutory interpretation.   Put simply, a major part of the Court’s job is to read federal statutes and figure out what the words in them mean, how they work together, and how they should apply.  Very often, different federal courts of appeals have interpreted the statutory language differently, and it’s up to the Court to establish a consistent interpretation of the law.

In Barber, the language at issue is the phrase “term of imprisonment,” under a federal law that awards federal prisoners credit – in the form of days off of their sentences – for good behavior.  While the term might seem simple on its face, in operation, it is anything but.  At argument, the Justices’ job was to figure out how different interpretations of the phrase would play out in real-life sentences.  How did they attempt to do that?  Through a common questioning technique called “extension of the hypothetical.”

When the Justices extend the hypothetical (a practice Justice Breyer particularly enjoys), what they’re doing is trying out different ways of looking at the law in situations that might arise sometime in the future.  That’s because they know that their decision will apply not only to the facts of the case currently before them, but also to lots of other cases in the future.  They want to make sure that whatever they decide about what the language of the statute means will work in all (or at least the majority of) these cases, even though they have not yet arisen.  Sounds hard, right?  But that’s part of the job of a Justice:  to look into the future and think about what other kinds of cases are down the pike.  That also means that it’s the advocates’ job, too, because part of oral argument preparation involves thinking about hypotheticals.  They’re undoubtedly up to the task, as most of law school involves class discussions that revolve around – you guessed it – the good old hypo (in law school speak).

So in Barber, the Court had to consider not only the text of the statute, not only what Congress intended by it, not only the rule of lenity (a rule of statutory construction that says that, when in doubt about how harsh a punishment is supposed to be, the defendant gets the benefit of the more lenient option), but also how the prison system could properly calculate the good-time credits in a variety of hypothetical situations.  They ended up looking at what would happen with long sentences, and short sentences, and sentences in between.  When would the reduction occur?  How would that work?  As Justice Stevens said, “awfully hard to understand.”

Sounds like a pretty serious issue, but even serious questions can engender good times at the Court.  CNN noted that even Justice Thomas, usually silent at oral arguments, was heard to be laughing, as was everyone else in the courtroom.  Not surprising – what many people don’t realize is that the Justices truly enjoy their jobs, and they often make jokes or engage in banter with the advocates and each other, making sitting in the Courtroom an entertaining way to spend a morning. 

Of course, when we’re dealing with federal statutes, we’re talking about laws passed by Congress.  That means that, once the Court tells us what a statute means and how it applies, Congress might change (“amend”) the law, and we’ll never see any of these hypotheticals play out.  Why? Well, sometimes the Court’s interpretation of the law does not align with what Congress intended to say, or sometimes the political climate will not support the Court’s interpretation and Congress feels pressure to change the law. Sometimes, those very same hypotheticals are on Congress’s mind, so it acts to change the law so that it will operate better.  Will this happen in Barber?  We’ll have to wait and see – first, what the opinion ends up saying, and second, how Congress reacts.

In Renico v. Lett, the Court faced a different issue:  When is it double jeopardy to try a defendant again because the judge did not properly declare a mistrial?  The case involves a defendant whose first trial ended in mistrial, but who claims that the judge should not have granted the mistrial because she received mixed signals from the jury.  Both the federal district court and the Sixth Circuit granted the defendant relief, saying that the trial court judge had not been sufficiently vigilant in determining that the jury was indeed deadlocked and a mistrial was necessary.  The question for the Court now?  How much deference is due the trial court judge in determining that a mistrial was necessary.

Let me explain.  Whenever a case is appealed, the appeals court must review the decision of the trial court.  Appeals courts tend to (rightly) respect trial court judges and the difficult decisions they must make.  Therefore, except in unusual circumstances beyond the scope of this discussion, the appeals court will often “defer” to the trial court’s decision.  When it does not, it may (depending on the question before the appeals court) need to determine that something went seriously wrong in the trial court’s decision-making process, or that there was an “abuse of discretion.”

Here, however, the defendant says that the judge did not use “sound discretion,” as required by Supreme Court precedent that’s almost two hundred years old.  Therefore, the oral argument in this case centered largely around what, if anything, the trial judge could or should have done differently before declaring the mistrial.  Should she have consulted with counsel?  Should she have determined whether the jury could have reached a verdict on a lesser charge?  And if the judge did err, what effect does that have under AEDPA, a federal law providing for habeas relief?  A tough case, but an interesting one for those involved in criminal litigation.

In one more major argument involving criminal law and sentencing, the Court considered Dillon v. United States, a case about whether defendants convicted of offenses involving crack cocaine are entitled to have their sentences reduced because of new sentencing guidelines issued by the United States Sentencing Commission.  The Commission recommended reduced sentences in 2007 but then sought to make that recommendation retroactive – or go back in time – to reduce the sentences of defendants who were previously sentenced.  A federal law authorized the sentence reduction. However, the Commission’s guidelines also say that the minimum sentence outlined in the guidelines is the minimum sentence a judge can impose – in other words, a judge is bound by the guidelines in reducing sentences imposed for crack offenses. 

However, in Dillon, the Court must look to its own decision in one of the major decisions of the decade, United States v. Booker, in which it held that the sentencing guidelines are advisory, not mandatory.  Perhaps predictably, the oral argument involved intense questioning from the Justices about Booker’s scope and applicability, as well as about whether a court can be bound by Sentencing Commission policy statements and whether allowing discretion in this type of sentence-reduction scenario would overburden the courts.  Finally, do other factors like good behavior play into the calculation?  And , as Tony Mauro notes here, what would the sentence reduction actually be?   A new sentence, or a commutation, or some type of modified sentence?

The Court also heard arguments in cases involving private securities fraud lawsuits, private actions for criminal contempt, and recidivist drug possession.