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.

NEXT: "Texas Governor Signs Executive Order Donating City Of Austin To California"

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  1. While this ridiculous lawyer bullshit is going on, there are 15000 murders and surging, 83000 drug overdoses, and 5 million violent crimes, half of which are drug related. Inner cities are being devastated by the lawyer client. We must get rid of this toxic occupation protecting the criminal, and start killing the criminals at the youngest age palatable. You stink, you lawyer traitors.

    The surges? 100% the fault of the pro-criminal lawyers loosing vicious criminals onto our cities. You call it sentencing reform. It is predictable mass murder of minority males, as predictable as the sun rising in the East.

  2. “ignores that these leaders “also called for federal investment in longer-term, root-cause solutions such as welfare, education, and job training programs.””

    Yeah, when are we going to get some of those kinds of government programs?

    1. lol, yes, I had the same thought.

  3. I thought Thomas’ discussion of history unnecessary before I got to the dissenting opinion. That eight page majority should have been seven.

    1. Thomas is kind of right though. A lot of activists and the CBC are being disingenuous about these things now because they don’t want to admit that there was a time when the Black community was significantly pro-war on drugs. I worked for Jesse Jackson’s campaign and it is was highly supportive of the drug war.

      The gangsta rappers were always anti-war on drugs, but they were dissenters in their communities. Thomas has every right to tell this story.

      1. Shoot, things were bad enough that Sean Penn was willing to star in a movie glorifying cops.

  4. Well all now know the animosity that our wise latina justice has for (w)hite people.

    1. but what about [w]hite Hispanics?

  5. >President Biden could use clemency for these cases.

    NFW. He remembers Willie Horton.

  6. “He is using these votes to make a political point: the legislation, at least at the time, was popular and salutary.”

    Well, too bad for him: Those votes could establish the legislation to be popular, but they’ve got nothing to do with whether it’s “salutary”, “beneficial”. Only whether it was thought to be.

    1. It was also thought to be extremely necessary at the time. We forget how much of an urban hellscape the American city was back in that day and age which was attributed mostly to drug related crimes. Crack was really bad and our wise latina would like us to forget that inconvenient fact for her own political purposes.

      1. Well, sure, but as anybody familiar with libertarian theories could tell you, the drug related crimes were, like the Prohibition related crimes a few generations earlier, due to the drug laws, NOT the drugs.

        You don’t want black markets, and the crime they produce, don’t out law things people want.

        Now, I’m sympathetic to the position that drugs are bad for you. I agree. My problem is that, while drugs are bad for the people stupid enough to use them, drug laws are bad for the people sensible enough to NOT use drugs.

        And it’s the latter I care about, not the former.

        1. Your libertine theory may be correct, and perhaps the “root” cause is the prohibition of substances that ought to be legal and regulated. But that wasn’t the public policy hammer that was used at the time nor did the public have any appetite for any libertarian based solutions then. Perhaps “law and order” in retrospect created a series of unintended negative side effects, but what it did do was also end the hellscape of the American city.

          1. There is nothing “libertine” about recognizing that even a million laws will ever make a man moral. Recognizing that cages will not stop a person from destroying themselves and could even cause more problems than it solves, is the beginning of wisdom.

          2. The present hellscape of the American city far eclipses that of yesteryear.

            1. I think if you had to endure the American city in the 1980’s you would disagree somewhat. But it is getting bad, worse than we have seen in a generation. All the depictions of urban landscapes in the 70’s and 80’s in movies and TV shows was not creative license. They were accurate, or if anything, downplayed somewhat.

              1. They’ve been single party states longer now. Detroit, for example? Last Republican Mayor was in 1957. In the 80’s that was only 20-30 years earlier, today that’s over half a century.

          3. “but what it did do was also end the hellscape of the American city.”

            Seattle and Portland would beg to differ.

            1. These remain successful cities where plenty of happy people live and work.

              1. Now tell us about Minneapolis.

                1. I happen to be sitting in Minneapolis right now. Yes, crime is up significantly, but it’s still a whole lot better than it was 30-40 years ago. If nothing else, the abandoned, run-down buildings have been replaced by condos with seven-figure price tags.

                  No, it’s not as nice as it was 18 months ago. But downtown was largely mothballed for a year. Let’s reevaluate it in about 6-12 months.

  7. I wonder if the can of soda is a reference to some long ago hearing.

    1. I know what *hearing* you are referring too, but I seem to recall that in an appellate hearing long ago in an obscenity case a judge made reference to a “can of soda” for the general appearance of certain male actors genitals stressing the thickness of said member. I can’t recall the case unfortunately and an internet search is not giving it up…

      1. I hope your are doing the searching from home with an incognito window. Otherwise, have fun with the ads and explaining to IT that “no, no, really, I was doing legal research.”

  8. Was the soda can a subtle reminder of Anita Hill?

    1. If so, that’s one vicious dig.

    2. That’s a stretch. It could be that the most common thing about 390 grams is, in fact, a can of soda.

    3. That was my first reaction.

  9. Sotomayor reads like Politifact. “Well, I can’t show he’s actually wrong about anything he says, but HERE’S SOME OTHER STUFF HE SHOULD’VE ALSO SAID.”

  10. So, Justice Sotomayor is still the racist she outed herself to be in her confirmation hearing — shocking.

    And a Democrat politician as well! I lived through these debates and remember them well: the CBC demanded the harsher crack sentencing and you were a racist! who wanted little black girls to be gunned down on their stoop if you did not disagreed.

    Fast forward a couple of decades and the same CBC (with a few of the same politicians!) were insisting you were a racist! if you didn’t support the repeal of the very same law!

    1. Racism and racist are really non-words in our modern lexicon. If someone uses them I just largely ignore the fact that they appear or were spoken as they have no real meaning.

      1. When will the gopE types realize that “the Dems R the real racists” is not going to carry the day?

  11. Yes, I check these sorts of things.

    And do so with about your typical level of rigor, since you missed the references to “soda cans” in Kisor v. Wilkie and District Attorney’s Office v. Osborne.

    1. Hmmm AK must be off trolling somewhere else today. Figured he would be here in 3….2….1 to make some dig on third tier law schools…..

      1. Prof. Blackman isn’t within spitting distance of a third-tier law school.

        Though to be fair, his employer did try to change its name to fool students into thinking they were an actual third-tier school. They ultimately caved in the face of threatened litigation, though.

  12. 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

    Legislative history for me but not for thee?

    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.

    And yet former Justice Scalia once cited the popularity of the Voting Rights Act to argue that Section 5 was unconstitutional. Yes, originalism is truly a consistent doctrine that is not intended to produce results that the Right desires.

  13. In the next opinion, Justice Sotomayor accuses CT of not being black enough, and that she’s the real black person on the court

  14. “…But capitalizing “Black” is now part of legal newspeak. Call it Soto vocce….”

    Okay, that was really clever.

    1. Modern Racism v. the Old Rules. Subsets of peoples were capitalized. Blacks. Whites. Negroes. Even perjoratives like Limey, Kraut, or Taig. This fashion for lower-case letter for “negro” may have started during the New Deal when Southerners started to force their way to being socially accepted outside of the South, tho’ widespread military service during WW I and the predilection of Southerners for military careers’ inculcating Southern beliefs into other parts of the country, or even earlier aping of British upper class culture in America at the turn of the last century may be at fault. might also be the cause. Today’s practice of using upper-case “Black” but lower-case “white” is modern within the last few years and is Racist as in setting up a caste system to “rectify” past prejudices.
      Bad to see the SCOTUS and other judges adopting this pattern along with many in the legal business–this after they did the idiocy of replacing “vs.” with “v.”! Modern decisions make sorry reading.

  15. I do not see a lower case reference to “white” persons – or whites – in Justice Sotomayor’s opinion. Did I miss it?

  16. Trump supported the First Step Act, Biden opposed it.

    Yet this supposedly “libertarian” site consistently bashed Trump and went so far as to endorse the use of police-state tactics against him and his supporters.

    You people are frauds. You claim to oppose coercive big government but you consistently manage to find excuses to support and promote it.

    1. Trump supported the First Step Act, Biden opposed it.

      I can find nothing to suggest that Biden opposed it. To what do you refer?

      1. Yeah, I can’t find any signs he actively opposed it. In fact, he liked it so much he tried to claim credit for it.

        The most you can say here is that the wrongs it undid WERE in part Biden’s, because though he had nothing to do with the First Step act, his fingerprints were all over the law it overturned.

        1. What law do you think the First Step Act “overturned”?

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