The Volokh Conspiracy

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In Terry, Justice Thomas pats down the Biden Administration. But Justice Sotomayor Frisks Justice Thomas.

The SG's changed position was unanimously rejected. But Justice Sotomayor refused to join CT's "unnecessary, incomplete, and sanitized history of the 100-to-1 ratio."


At quick glance, Terry v. United States looks like a smooth, unanimous decision. The Court held that under the First Step Act, a crack offender is not eligible for a sentencing reduction if he was convicted of a crack offense that did not trigger a mandatory minimum sentence. Beneath the surface, however, the waters were very choppy.

First, Justice Thomas's majority opinion faulted the Biden Administration for switching positions. Indeed, the criticism was even more pointed because of the late-arriving brief. (I wrote about that reversal here and here).

On the day the Government's brief was due, the United States informed the Court that, after the change in administration, it would no longer defend the judgment. Because of the timeline, the Court rescheduled argument, compressed the briefing schedule, and appointed Adam K. Mortara as amicus curiae to argue in support of the judgment.He has ably discharged his responsibilities.

In the past, Justices have chastised the SG for switching positions during oral argument. I can't recall this sort of criticism in a decision.

And the upshot of that presidential reversal? A unanimous loss. 9-0. Here, the Biden Administration did not switch sides after an intervening court decision. Nor did the Administration pick a more defensible position. It changed sides at the last moment to adopt a losing argument.

Second, Justice Thomas uses harsh language to describe the SG's argument. He deems the SG's position as a "sleight of hand."

To avoid this straightforward result, petitioner and the United States offer a sleight of hand. Petitioner says that the phrase "statutory penalties" in fact means "penalty statute." The United States similarly asserts that petitioner is eligible for a sentence reduction if the Fair Sentencing Act changed the "penalty scheme."But we will not convert nouns to adjectives and vice versa.

Again, all nine Justices joined this barb. And the majority opinion was only 8 pages. That is very, very short. It didn't take much space to dispatch the government's position. So far, the Court was on the same page.

Third, however, there was some hostility between Justice Thomas's majority opinion, and Justice Sotomayor's concurrence. Justice Thomas provided a history of the 1986 omnibus crime bill that created 100:1 ratio. He explained that this bill was overwhelmingly supported by black people:

A majority of the Congressional Black Caucus cosponsored and voted for the bill. Compare id., at 23003, with Hearing before the Congressional Black Caucus, "Brain Trust on Aging" and the House Select Committee on Aging, 99th Cong., 1st Sess., iii (1985). Many black leaders in that era professed two concerns. First, crack was fueling crime against residents in inner cities, who were predominantly black.For example, the president of an NAACP chapter in the D. C. region called crack "'the worst thing to hit us since slavery,'" a sentiment echoed by the leading black newspaper in Los Angeles. J. Forman, Jr., Locking Up Our Own 158 (2017). Second, there were concerns that prosecutors were not taking these kinds of crimes seriously enough because the victims were disproportionately black. In the words of John Ray, a D. C. council member who spearheaded a successful effort to create mandatory minimum penalties: " 'Black crimes against blacks get very low sentences,' " unlike crimes against whites. Id., at 132.

Justice Thomas lived in D.C. in the 1980s. He is probably speaking from personal recollection here.

Justice Sotomayor dissented from Part I of the majority opinion. And she slammed Justice Thomas's history:

I do not join Part I of the Court's opinion because it includes an unnecessary, incomplete, and sanitized history of the 100-to-1 ratio. The full history is far less benign. The Court, ante, at 2, n. 2, emphasizes Black leaders' support for "tough-on-crime" policies, but ignores that these leaders "also called for federal investment in longer-term, root-cause solutions such as welfare, education, and job training programs." J. Forman, Locking Up Our Own 157 (2017) (Forman). But "[t]he help never arrived," leaving Black communities with "just the tough-on-crime laws" and little else. Id., at 12.

Justice Sotomayor accuses Justice Thomas of whitewashing history. I'd love to be a fly on the wall during the SCOTUS reading group meeting about the 1619 Project.

One other note. Justice Sotomayor capitalizes the word "Black." Justice Thomas, does not. I still find it jarring to see the word "Black" capitalized in a sentence, while the word "white" is in lowercase. I understand that various style guides have adopted this approach. I haven't seen this juxtaposition in an SCOTUS decision yet. But capitalizing "Black" is now part of legal newspeak. Call it Soto vocce. Justice Sotomayor also expurgated the word "alien." I understand the Solicitor General has adopted this practice.

Fourth, both the majority and concurrence took an unfortunate frolic and detour into partisan politics. In 2019, I criticized Justice Kavanaugh for identifying the President that signed a bill into law. Justice Kavanaugh has long had this practice. Still, I wrote in The Atlantic, "[t]he Court should resist the urge to wade, or even dip a toe, into partisan squabbles by naming the politicians responsible for legislation, unless, of course, those facts are necessary to resolve a given a case." Justices Thomas and Sotomayor throw this caution to the wind.

The majority stresses that the 1986 omnibus crime bill was passed "with near unanimity." He doesn't name politics, but highlights that Republicans and Democrats voted for the bill:

In response to these concerns, Congress quickly passed a bill with near unanimity.2

2 The Act passed the Democratic-controlled House, where it was introduced, 392 to 16. It passed the Republican-controlled Senate 97 to 2.

Thomas includes this history to show that the 1986 bill was not controversial, and indeed was widely supported. None of that history is relevant to interpreting the 2018 First Step Act. He is using these votes to make a political point: the legislation, at least at the time, was popular and salutary. Also, one of those 97 senators was Joseph Robinette Biden. Indeed, Biden helped draft that crack legislation. Another friendly pat-down. Revenge is a dish best served cold after three decades.

Justice Sotomayor offers an implied rebuke of then-Senator Biden. It turns out that the 100:1 ratio was apparently made up without any rationale. What a bunch of malarkey!

Nor does the Court mention that the "'careful deliberative practices of the Congress were set aside'" for the 1986 omnibus crime bill that included the 100-to-1 ratio, as part of a "rush to pass dramatic drug legislation before the midterm elections." Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1294, and n. 55 (1996) (Sklansky). Indeed, the "legislative history offers no explanation for the selection of a ratio of 100:1," save that it "was the highest ratio proposed." Id., at 1297.

Fifth, Justice Sotomayor once again urges Congress to take action:

Indeed, the bipartisan lead sponsors of the First StepAct have urged this Court to hold that the Act "makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act."Brief for Sen. Richard Durbin et al. as Amici Curiae 11. Unfortunately, the text will not bear that reading. Fortunately, Congress has numerous tools to right this injustice.

This call for action is more genuine because she ruled against the prisoner. Unlike in Ledbetter, all nine justices agree that the statute favor the government.

Even if Congress does not act, President Biden could use clemency for these cases. That action would have been far more defensible than flipping positions before the Supreme Court.

Finally, one other oddity. Justice Sotomayor's opinion was the first time the phrase "can of soda" appeared in a SCOTUS decision.

He would have received the same base offense level for selling 390 grams of powder cocaine (about the weight of a full can of soda).

Yes, I check these sorts of things.