Podcast Episodes on Textualism

Last week I appeared in two podcast episodes that could be of interest, especially to those interested in statutory interpretation.

One was as a guest of Yale Law Professors David Schleicher and Samuel Moyn on "The Legal Theory Podcast: Digging A Hole," where I was very skeptically interrogated about unwritten law and textualist interpretation -- the themes of my Scalia lecture: Beyond Textualism? That episode is here: Episode 52: Will Baude — Digging a Hole: The Legal Theory Podcast (diggingaholepodcast.com)

The other was in our most recent episode of Divided Argument, with Professor Dan Epps. In this episode we focused on Pulsifer v. United States, a pending case argued last month about the meaning of the 2018 First Step Act in which a lot of fundamental questions of statutory interpretation were in play. (We also discussed the new SCOTUS Code of Conduct, the oral arguments in US v. Rahimi, and more.) That episode is here: Easy Win | Divided Argument.

 

Comments

[Sarcastr0]

‘Late Stage Textualism’ was a pretty good phrase tossed off in Divided Argument.

Also of note was the discussion of how formalistically textual Justice Kagan can get.
Not too legal realist!

[Marsden]

Pulsifer decision dropped 15 March.

Really poor decision, in my opinion. And the dissent was weak. Justices, their clerks, and everyone at the Department of Justice seem to be too far away from routine cases to know their asses from a hole in the ground.

Majority held, in part, "Pulsifer’s reading would render Subparagraph A superfluous because a defendant who has a three-point offense under Subparagraph B and a two-point offense under Subparagraph C will always have more than four criminal-history points under Subparagraph A." On this basis, they completely divorced their interpretation from the literal meaning of the text of the statute, whether by assuming that Congress sloppily wrote "and" when it meant "or," or equally sloppily intended the distributive "does not have" when they wrote it in a non-distributive sense.

This is just poor, poor reasoning, and both litigant and dissent failed to demonstrate an obvious hole in it.

To back up, suppose the statute read only, "... the defendant does not have a prior 2-point violent offense." Suppose defendant has a prior 3-point violent offense -- is he clear because his offense is a 3-point violent offense rather than a 2-point violent offense? Surely not: the exemption from mandatory minimum sentencing is supposed to let only less serious criminals float by, and someone who has committed a 3-point violent offense is MORE serious than someone who doesn't get the pass because they have committed a 2-point violent offense.

So subparagraph (C) should almost certainly be understood to indicate a 2- or 3-point violent offense.

And then, going back to the actual text, a defendant can take strikes on both subparagraph (B) and subparagraph (C) based upon a single 3-point violent offense ... and if no other offenses count toward toward the subparagraph (A) 4 criminal history points total, he skates on (A), meaning that under the ACTUAL WORDING OF THE STATUTE subparagraph (A) is NOT superfluous.

And to get an idea of how bad this decision was, majority's interpretation would hold that a defendant with two 2-point NON-VIOLENT offenses could not be exempted from the minimum sentencing requirements for having more than 4 criminal history points. A 2-point criminal offense is one that results in imprisonment for at least 60 days but not more than 13 months, so someone who was sentence to 60 days for each of two separate offenses is, by the majority's interpretation, one of the hardened criminals intended to be excluded from the mandatory minimum sentencing.

So what might those offenses be? Simple possession of marijuana? Driving while impaired?