Last week at the Court – in Plain English

By Lisa Tucker
on Nov 22, 2010 at 11:36 am

If it feels like last week was a quieter week at the Court, you are probably right; there were no arguments and no Conference.  But before all of us take a much-needed holiday break, we can review what did happen at the Court last week.  First, the Court issued its first signed opinion of the new Term, in two cases about criminal sentences:  Abbott v. United States and Gould v. United States.  Considering that these cases were only argued just over a month ago, it’s not surprising that the decision was unanimous (with Justice Kagan recused).  In other words, all of the Justices saw this one the same way, and Justice Ginsburg (who is known for being a speedy writer) wrote the opinion quickly.

The cases involved two criminal defendants convicted of drug offenses.  According to the government, under a federal statute, because the defendants possessed or used a gun during the commission of their drug crimes, the sentencing judge properly increased their prison sentences by five years.  But the defendants read the statute differently:  they argued that a provision in the statute which made the five-year increase mandatory “except to the extent that a greater minimum sentence is otherwise provided” meant that, if their sentences for the drug part of the crime were more than five years, the judge should not add another five years.

But the Court disagreed.  As Justice Ginsburg noted in the Court’s opinion, Congress wanted to increase punishment for carrying guns, and the statute and the “except clause” should therefore be read to add five years to the sentence regardless of how long the sentence for the drug crime might be.  In fact, said Justice Ginsburg, had they brandished the guns during the drug crimes, the mandatory additional sentence would have been even longer under another statutory provision – and it was precisely such a longer sentence that Congress referenced in the “except clause.”

The Abbott and Gould cases bring up two interesting issues about the Court’s decision-making process.  First, when two or more cases present the same issue, the Court will often “consolidate” them – that is, it will decide them in one opinion.  But in order for the Court to consolidate the cases, they must have very similar facts and legal questions; in recent years, for example, the Court has declined to consolidate arguments or opinions in cases about affirmative action admissions policies at public universities, life-without-parole sentences for juveniles, and public displays of the Ten Commandments.  When two cases seem very similar but the Court does not consolidate them, Court watchers frequently speculate (often correctly) that the Court has grounds for “distinguishing” the cases and will therefore decide them differently.  But in Abbott and Gould, the Justices apparently regarded the cases as sufficiently identical to warrant consolidating them and reaching the same result in each, issuing only one opinion for the two.

That concept of “distinguishing” is also an important one.  In U.S. law, probably the most valuable persuasive legal tool is called “analogy and distinction.”  Because the Court (and, indeed, almost all U.S. courts) follows the doctrine of stare decisis, it compares the facts of each case it decides to those of cases it has decided in the past.  Stare decisis means “let the decision stand,” and it is the foundational principle behind deference to precedent.  In other words, it promotes consistency and predictability in the law.  Therefore, if advocates find that the holding and reasoning of an earlier case are helpful to their own, they will analogize their case to that one, arguing that the facts of the new case are similar enough to those in the prior one to warrant a similar outcome.  Similarly, if an earlier case does not support the advocates’ position in a new case, they will distinguish that case from the new one.  And that is exactly what Justices generally do, too:  in their opinions, they will explain how the cases before them are similar to or different from the Court’s earlier cases.

Abbott and Gould were typical Supreme Court cases in another way, as well.  Every Term, a substantial amount of the Court’s workload consists of statutory interpretation cases.  In these cases, the Court must read a federal statute and decide what it means.  Once the Court interprets the statute as written, that interpretation binds all other courts.  But, in a classic example of checks and balances, Congress can disagree with the Court’s interpretation and respond by rewriting, or “amending,” the statute to reflect what it meant to say.  When Congress “overrules” the Court “by statute,” the language of the new statute is up for interpretation all over again.

On to the other major happening at the Court this week:  the grants in two criminal cases, Tolentino v. New York and Fowler v. United States.  In Tolentino, the Court will consider a new situation involving the exclusionary rule, which is the constitutional prohibition on admitting improperly acquired evidence in a case against a criminal defendant.  At issue here is the admissibility of DMV records obtained after the police have illegally stopped the defendant.  And in Fowler, the Court will consider when the federal government can prosecute a defendant under a law that makes it a federal crime to murder a person to prevent him from reporting a crime to federal authorities.  Does the victim have to actually intend to report the crime to such authorities?  Or is the possibility that he might do so enough?

Happy Thanksgiving to all – see you in December.