Courthouse Steps Decision: Pulsifer v. United States

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Chayila Kleist:  Hello, and welcome to this FedSoc Forum webinar call. Today, March 22, 2024, we're delighted to host a "Courthouse Steps Decision" on Pulsifer v. United States, a case concerning a coordinating conjunction and the extent of the safety valve in the First Step Act which was decided just last Friday by the Court.  My name is Chayila Kleist. And I'm Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's program, as The Federalist Society takes no position on particular legal or public policy issues. 

 

      Now, in the interest of time, I'll keep my introduction of our guest today brief. But if you'd like to know more about our speaker, you can access his impressive full bio at FedSoc.org. Today we are fortunate to have with us Vikrant Reddy, who serves as a Senior Fellow at Stand Together Trust, specializing in the area of criminal justice reform. Mr. Reddy previously served as a senior policy analyst at the Texas Public Policy Foundation, TPPF, where he managed the launch of TPPF's National Right on Crime initiative in 2010.

 

He's worked as a research assistant at the Cato Institute, as a judicial clerk to the Honorable Gena Benavides in Texas, and as an attorney in private practice. He's a member of the State Bar of Texas, and also an appointee to the U.S. Commission on Civil Rights Texas State Advisory Committee. Mr. Reddy's research and scholarly opinions have appeared in a range of national media outlets, including USA Today, National Review, The Federalist, and others. And I will leave it there.

 

      One last comment, and then I'll hand it over to Mr. Reddy for a set of opening remarks. If you have questions, please submit them via the Q&A feature so they'll be accessible when we get to that extended portion of this program. With that, thank you all for joining us today. Mr. Reddy, the floor is yours.

 

Vikrant. P. Reddy:  Great. Thanks so much, Chayila. I'm really excited to be doing this Teleforum today. The Court is going to decide some more important cases this term. I'm sure of it. But the Court is not going to produce a more fun case this term. This opinion is just a hoot to read. And it is the kind of thing that lawyers just live for. And it's also the kind of thing that people who hate lawyers hate lawyers for. Because there is one central question in this case. And the central question is one of grammar. And it is, does the word "and" mean "and' or does the word "and" mean "or'?

 

      And, at first blush, you might think that's an absurd question. Doesn't "and" always mean "and"? What's this big argument about? And, by the way, if you do think that, Justice Gorsuch is on your side. But there is a plausible case for the other side. And, in fact, it's the other side that won. And I think we should dig into the details of it and discuss it a little bit. So, Pulsifer v. the United States is about this man named Mark Pulsifer from Iowa who got in trouble for selling methamphetamine. 

 

So, Pulsifer has a criminal history. And, as such, he was subject to a pretty strict mandatory minimum in federal court, up to 15 years in prison. So, a pretty significant sentence. Now, we do, on the other hand, have a safety valve provision in our federal sentencing law that would have allowed the judge to take some other circumstances into account and alleviate his sentence just a little bit, unless he had a particular kind of significant criminal history.

 

      So, this is all listed in Section 3553 (f)(1). And I won't get into it in too much detail because it's not really relevant for our purposes. It's a lot of detail about the federal sentencing guidelines. But, for the sake of today's conversation, we'll do what the opinion did, and just say that your criminal history cannot be A, B, and C. Again, the A, B, and C don't really matter. What matters is the word "and:" A, B, and C.

 

      What does it mean to say that you can't have A, B, and C in your criminal history? Does it mean that you can't have A, you can't have B, and you can't have C, all together? Or does it mean that you can't have A, you can't have B, or you can't have C, those three things separately? That's the question at the heart of the case. And it's just such a picayune little grammar point. But it matters. There are 10,000 federal defendants who are in a similar position to Mr. Pulsifer. And they're very interested in the outcome of this kind of grammatical analysis. 

 

      So, Mr. Pulsifer and the government, for what it's worth, understand that he has done A, and he has done B. And they all accept and are in full agreement that he has not done C. Now, the government says, "Listen, this is a significant criminal history. You have done two of the things on this list. That's bad. You're not eligible for the safety valve." Mr. Pulsifer says, "Au contraire. I may have done two of the things on that list. But I haven't done the third one. And you have to have done all three. If you haven't done all three, then you're absolutely eligible for the safety valve."

 

And they've both got a lot of very powerful voices in their support. The "and" means "and" position that Mr. Pulsifer argues was supported by the Eighth Circuit, by the Eleventh Circuit and by the Fourth Circuit. The "and" means "or" reading of that statute, which the government advocated for, was supported by the Fifth Circuit, the Sixth Circuit, and the Seventh Circuit. So, it's obviously the kind of case with a very significant circuit split that impacts lots and lots of people — and that, frankly, is just kind of fun to think about and parse through — that is the kind of case you would absolutely expect the Supreme Court to take up.

 

So, they did. And Mr. Pulsifer lost, which surprised me a little bit. I did an oral argument preview for this case, at the beginning of the term, for The Federalist Society. And I predicted that Pulsifer would win. I just didn't quite know how. But he did lose. He lost the case 6-3. And we should talk a little bit about that 6-3 lineup maybe in more detail later. But, for now, I'll just say that it's not the usual 6-3 lineup that you would think about. Most of the traditional "conservative" justices were in the majority, joined by Justice Kagan.

 

Justice Gorsuch, on the other hand, was in dissent, joined by two of the more traditionally "progressive" justices, Sotomayor and Jackson. So, it was kind of an unusual 6-3 split. And for all of your friends outside the law who think that everything that happens at the Supreme Court is just predictable left/right stuff, this is the kind of case that you should throw at them to help them understand that, listen, the Supreme Court is a lot more than those cases that make the front page of the New York Times and the Wall Street Journal. It's about all sorts of really interesting cases about criminal justice and bankruptcy and intellectual property that don't always go in the traditional 6-3 way.

 

But, anyhow, so the case went 6-3. The government won the case. And if you read through the opinion, it is this incredible tennis match where the two sides are going back and forth on how to interpret lists like this. And they come up with all sorts of interesting examples. Justice Kagan even cites this book — which some of the people on the call who have young children will be familiar with — to talk through how you think about the word "and" in a list. And you should go and read this section of the opinion because it's so much fun.

 

      One example, another example that she cites that I think is important to talk through here because it will really help people, especially lawyers, understand the defense of the "and" means "or" argument, it's a line that comes straight out of the Constitution. And it is the line that says, out of Article III, "The judicial power shall extend to all cases arising under this Constitution, the laws of the United States, and treaties." Nobody thinks that that line means that the judicial power extends to cases that come out of all three of those things combined; it's got to be something involving the Constitution and the laws of the country, and the treaties. That's crazy.

 

      Obviously, it means it has to come out of one of those three things: the Constitution, the laws of the United States, or treaties. It doesn't say "or." It says "and." But it's obvious that "and' means "or." There simply isn't a counterpoint, as far as I can tell. Now, Justice Gorsuch agrees with that. But he and Pulsifer make that point, that, well, things can get a little bit different whenever you use a negative construction, as they do in the safety valve provision, whenever you say something like, "cannot" or "do not." Let me be more precise, because I sound so abstract.

 

      Just think of the phrase, "Don't drink and drive." Nobody thinks that that phrase means, "Don't ever drink in life, and don’t ever drive in life." Everybody understands that means "Don't drink and drive at the same time. Don’t do those things together." It conjoins them. Don't drink and drive. In the same way, because there's a negative construction in this statute, Pulsifer argues, and Gorsuch argues, joined by Justices Jackson and Sotomayor, that it's got to be all three of the provisions: A, B, and C. 

 

      Well, like I said, it's a tennis match. Justice Kagan comes right back, and she says, "Well, I'm not so sure that the negative construction thing matters. Imagine," she says, "that you meet somebody's parents and you go back and you tell your friends, 'You know, I didn't really like his mother and father.' What does that mean? Does that mean that I liked his mother independently and I liked his father independently. But when the two of them were in the room together, I didn't like his mother and father? That's weird. That's obviously not what that means when you say, 'I didn't like his mother and father,' it means you didn't care for either of them particularly much. Whether they were together or whether they were apart, you didn't like them."

 

      Again, it's pretty clear that that's what that kind of construction means. This goes on and on, back and forth, this incredible tennis match where they just keep coming up with these different kinds of hypotheticals with these different constructions of how people use language and what language means. In the end, Justice Kagan was simply more persuasive, and she got Chief Justice Roberts and Justices Alito and Barrett and Thomas and Kavanaugh to join her. And Justice Gorsuch was only joined by Jackson and Sotomayor.

 

Now, Justice Gorsuch was kind of irate in his dissent, saying that there are all sorts of different ways to analyze the language here. First is just the plain meaning of the word "and." And, there, Mr. Pulsifer wins. There's the context that you're looking at here, the legislative history, if you're interested in that sort of thing, which, in The Federalist Society we tend to be less interested, but there are people who follow that stuff very closely and who think it's part of a good analysis of a statute.

 

And, here, it seems fairly clear that this language, which came out of the First Step Act of 2018, which was a law that was passed by Congress and signed by President Trump at the time, which was a law that was intended to alleviate very harsh federal sentences, particularly very harsh federal sentences for non-violent drug offenders, which is exactly that Mr. Pulsifer is. It seems pretty clear that this kind of law was intended to have a construction that would be read in favor of the defendants, rather than in favor of the government.

 

You've tossed that to the side. And, finally, you've tossed aside — I think this is worth a little bit of a discussion — a very old and venerable principle in statutory construction called the rule of lenity. What the rule of lenity argues is that whenever you are looking at a criminal statute — and its specifically about criminal, not civil statutes — when you look at a criminal statute and it is ambiguous and it could go this way or it could go that way, and you're not particularly sure, both arguments are plausible, in the end, you need to choose the argument that goes against the government and goes in favor of the individual.

 

And that's just kind of part of our American -- really, it goes further back than America, the rule of lenity, maybe our Anglo-American culture and ethos in favor of liberty and in favor of limited government power. You don't get to the rule of lenity if the statute is clear. It's only when it's ambiguous that you finally say, "Look, I can't figure it out. We're just going to find in favor of the defendant. This is a great principle for incentivizing governments to draft statutes as carefully and as precisely as possible.

 

And Justice Gorsuch says, "Look, we can debate this till we're blue in the face, but the fact that there are two plausible readings here suggest that we should just resolve this using the rule of lenity and find in favor of Mr. Pulsifer." And, in fact, there were several amicus briefs submitted to the Court — I want to say four all together — by various advocacy groups. And one, in fact, interestingly, by a group of linguists who did a lot of survey research on how people think of the word "and" in lists like that. Isn't it interesting to think that there's survey research on those kinds of questions? But there are, who did this research, and said, "Ultimately, it's ambiguous. People think of it in both ways." 

 

So, there's this very strong argument in favor of using the rule of lenity. I'll put my cards on the table and say if I was on the Court, I would have used the rule of lenity and probably found in favor of Mr. Pulsifer. But that's not what the majority of the Court thought. They did not think it was ambiguous. They thought it was pretty clear that "and" meant "or." And so "and" means "or' and the government won the case. And I'm afraid that means that Mr. Pulsifer and the 10,000 similarly situated defendants are not eligible for safety valve relief. 

 

It is an incredibly interesting case. It's so much fun to think through all the different hypotheticals. But I think it's also — for those of us who are on this call and who think a lot about this Court as a broader institution — it's really interesting to think about that 6-3 split, and the fact that these things are not as predictable as everybody thinks they are. It's also worth pointing out that this is another example, and there are many, of Justice Gorsuch kind of emerging as the new Antonin Scalia on the Court. 

 

Justice Scalia was very famous for taking a very textualist view of the Bill of Rights. That means all of the Bill of Rights, including approximately half of the amendments in the Bill of Rights that are related to criminal law and criminal justice. And so, sometimes, Scalia would come out in favor of criminal defendants in ways that people thought were surprising, because they said, "Well, he's a mean old conservative. Shouldn't he be finding in favor of the government and against the defendant?"

 

It's not quite that simple. His textualist principles took him to be more pro-defendant than people might immediately suspect. And Gorsuch has really emerged as that kind of voice on the Court. And it's just a kind of fascinating position that he holds there. It was a really neat case. I encourage everybody to read the actual opinion because I don't have time, in this call, to go through all the fun little hypotheticals that they go through. But they are really, really interesting to think about. And it's almost like a fun brainteaser. Anyway, it was a great case. And Chayila, I think that's an overview that can lead us to questions now. How about that?

 

Chayila Kleist:  Sounds great. I really appreciate that overview of the facts of the case, as well as the discussion that was going on between the two opinions. I will issue a reminder to our audience that if you do want to ask questions, you can do that by the Q&A feature. And, as those come in, I do have a couple that I would love to pose. You mentioned how there are sort of three aspects that both opinions reference in discussing this case: there's the grammar, there's the context, and then there's the rule of lenity. So, I do have a couple questions on each of those.

 

Vikrant. P. Reddy:  Yeah.

 

Chayila Kleist:  And we can see if we can get through. Starting with the grammar, you've given a great breakdown of what the competing interpretations of the word "and" are. I love, A) your reaction to the way that disagreement happened, because the majority contends they aren't saying "or." They're saying there's two ways you can understand "and." So, there's "and" one and "and" two. We're not substituting judgment here. 

 

And, obviously, the dissent disagrees. And I'd also love to know, in the context of that conversation, what could the ramifications of this kind of disagreement concerning what "and" means be for other instances of statutory interpretation? We're talking about the First Step Act, and then this particular set of aspects. But I'd be interested to know, could this affect other statutes?

 

Vikrant. P. Reddy:  That's a really great question. So, to take the first question first, I think that the dissent clearly just is trying to keep this case from getting overly complicated. "And" means "and." There's a way in which sometimes lawyers, and judges, certainly, can get really spun up in thinking about all kinds of legal technicalities. I don't think that's healthy for the law. I think that to be as plain and direct in law as you possibly can is very healthy. That's one of the big arguments behind textualism. And they're big supporters of just viewing "and" as "and.

 

      Now, understandably, the majority is saying, "Well, if we can come up with counterexamples where 'and' doesn't mean 'and' we have to take them seriously." It's just incredibly interesting. Like I said, I think that, in cases like this, this is what the rule of lenity is for. This is why that principle has existed for, honestly, longer than our Constitution has existed. There are applications of the rule of lenity that date back to English common law. So, I think that would have been the correct way to decide the case. But nobody asked me, other than you, Chayila.

 

      But your second question is really, really fascinating too. What does this mean, moving forward? I think it probably means, well, I think the majority would say it doesn't mean that much. The majority would probably say, "Look, you've got to look at these cases in their particular context, and sometimes 'and' means 'and' and sometimes 'and' means 'or.' And you really kind of have to think about what else is happening here. Now, the dissent disagrees. The dissent says, "No, you just read the words. Read the words on the page. 'And' means 'and' and don't overthink it. Or, if you insist on overthinking it, ultimately go to the rule of lenity."

 

      But that's not the side that won. So, ultimately, I'm not sure how much precedential value this will have in thinking through what "and" means. Because, like you said, the majority is not saying "and' always means "or." It's saying that it sometimes means "or." Now, the dissent is saying that "and" always means "and." But they didn't win. 

 

Chayila Kleist:  Okay. Well, it will be interesting to see how those various interpretations get applied, moving forward. I think we can have a lot more fun conversations on grammar. I selfishly think it's a great idea. Moving on to the question of context. I believe the majority opinion treated this as determinative. They said, "Okay, there's two interpretations of "and." You can have "and" means "and" and means "or."

 

But, because of context and the fact that, if we treat Mr. Pulsifer's argument as valid, it sort of invalidates or it makes superfluous a part of the statute, and that's not okay. Therefore, we're going to make this decision. It's not ambiguous. Lenity does not apply. And that's how the argument came out. Whereas, obviously, the dissent makes the argument that context is actually in their favor. So, I'd love it if you could give a little more background or context to the conversation on context, and what the actual points of disagreement were.

 

Vikrant. P. Reddy:  I'm glad you asked this because the way I presented it was probably not sufficiently fair to the majority. So, this will give me a chance to try and be a little bit more fair to them. The dissent was arguing that you have to look at what the First Step Act was all about in 2018. Most of the people on this call probably remember that moment in American culture and politics. Criminal justice reform was ascendant throughout the country. 

 

A lot of criminal justice reform packages were being passed at the state levels. The federal government was interested in adopting some of those state models to the federal system, and they were looking for ways to reduce sentences for non-violent drug offenders. This is what the entire national public conversation was about. This is obviously what they were trying to do. And so, the dissent says, "You need to try and interpret the statute in a way that is more favorable to reducing sentences for non-violent federal drug offenders."

 

What the majority says is "Our interpretation does do that. Both interpretations do actually reduce sentences for non-violent drug offenders. The question is just how much it reduces the sentence. And you're going for a much, much more expansive reading than we are. But we're not denying that that is the legislative history and the legislative context here. We're just denying that it goes -- " Well, let me say this more precisely. "We're denying that you have the ability to know exactly how far the legislators were trying to stretch this. At the time, you seemed to be very, very confident in your assessment." 

 

At least, that's how, I suspect, if you were to ask, say, Justice Alito or Justice Thomas to think through this, they would say, "Yeah, we know that the government was trying to go a little bit easier on non-violent federal drug offenders." But, if you're a senator and you're thinking about this legislation in front of you, how far, exactly, are you willing to go? Maybe you want to go further, but you understand that, in order to achieve your objectives, you have to compromise a little bit here.

 

These are the kinds of things you can't really know. All you really know is the final vote. And this is why people who are skeptical of legislative history, like Justice Scalia, have discouraged us from using it, historically. And, laying my card on the table again, I put a lot of value in Justice Scalia's arguments about the limited usefulness of legislative history. I don't, personally, think that would have been a good way to decide this case. Like I said, I would have gone with the text and, ultimately, the rule of lenity.

 

Chayila Kleist:  Got it. Also, in this context question, is there also a factual dispute between the two opinions, concerning how points are counted? If I understand correctly, the majority opinion said that B and C make A superfluous under Pulsifer's reading. And the dissent addressed this and said, "No, you can have A with B and C, or not have A with B and C. Therefore, it isn't superfluous in the way that the majority is arguing." How do you have those two interpretations? And what's the disagreement?

 

Vikrant. P. Reddy:  I can't say it any better than you did. It became this weird kind of algebra problem about adding up all of the various points that you're assessed under each of the three elements, A, B, and C, and whether or not you should add them all because "and" means "and" or whether or not you don't add them all up, because "and" means "or." If you read the opinion, there literally are little math equations in the opinion. It sounds weird, and you might think "How could that possibly help anybody understand what's going on?"

 

They actually are kind of useful. It's not really deep calculus or anything. It's kind of like seventh grade level algebra, where you're doing "Please Excuse My Dear Aunt Sally" and trying to figure out in the parenthesis what applies to the part outside the parentheses. Like I said, it's just an incredibly fun opinion. It's hard to imagine a more fun opinion from this term.

 

Chayila Kleist:  The Very Hungry Caterpillar and math problems: not a combination I expected to see. Last question on the flow, and then we can turn to some of our audience questions. On lenity, obviously, neither opinion fully relied on that. The majority said, "Lenity doesn't apply. It's not ambiguous." The dissent said, "We should have won on just the interpretation alone, and the grammar, and the context, but also lenity."

 

Vikrant. P. Reddy:  Yeah.

 

Chayila Kleist:  What are the potential ramifications for the fact that the majority's interpretation won out in this case, for the way lenity is applied, moving forward?

 

Vikrant. P. Reddy:  I don't know.

 

Chayila Kleist:  Are there any?

 

Vikrant. P. Reddy:  I don't know what the majority's analysis on lenity means. But I do have some thoughts on the dissent's analysis of lenity, and they go to Gorsuch, in particular. This is not the first time that Gorsuch has written in favor of applying the rule of lenity more aggressively in Supreme Court cases. There was a 2022 case called Wooden v. United States — which, actually, I think I briefed for The Federalist Society — in which Justice Gorsuch wrote about how the Court is not using the rule of lenity as aggressively as it could and, indeed, should. So, he has been barking up this tree for several years now. 

 

And, again, to go back to the Scalia example, most of the people on this call can think of all kinds of areas where Justice Scalia was really just a kind of voice in the wilderness when he first got on the Court. But decade after decade after decade went by, and all of a sudden, somebody like Solicitor General Elena Kagan is nominated for the Supreme Court and, in her Senate hearing she says, "Look, we're all originalists now." Because everybody believes in some version of originalism, this or that. Scalia had simply been so persuasive over the course of many years.

 

I do wonder whether or not Gorsuch's position on the rule of lenity, which he has very aggressively pushed, in multiple opinions now, is the kind of thing that could emerge as something the Supreme Court adopts in a more whole-hearted way, later on down the line. It will have to be much, much, later on down the line, because I just don't think, obviously, the votes aren't there right now. And there have even been some opinions written that are skeptical of the rule of lenity being applied in this way. 

 

I think Justice Kavanaugh wrote one a little while back. It may have been Wooden, now that I think about it. But it's a real hobbyhorse of his. And, if he's persuasive enough, over time, maybe he'll convince some justices. Or maybe the Court will change and will simply take on more justices who agree with Gorsuch's analysis. But I don't see him abandoning his analysis of the rule of lenity any time soon. It's very important to him. 

 

Chayila Kleist:  Got it. Thank you. Turning to some of our audience questions, one poses the following question, "Was there any suggestion that the justices decided the way they did, even though the statute was written incorrectly, but deciding it in the opposite way would have had too drastic an impact on so many cases already decided"?

 

Vikrant. P. Reddy:  Yeah. It's this age-old question about the extent to which the judges are thinking about the consequences whenever they're writing their opinions. And none of us can ever really know. We'd like to believe -- actually, maybe we wouldn't like to believe. There are some people who probably think about this differently than I do. But most of us in The Federalist Society would like to think that they're paying limited attention to the consequences and they're really just trying to analyze the law as it is, independent of the consequences. And consequences are the kinds of things that legislatures are supposed to deal with. If you don't like the consequences, then change the law. We're just trying to apply the law as it stands. 

 

I don't know. Who could possibly know what was in the justice's minds at the end of the day? I guess I will say that the progressive justices, I think, are just more comfortable thinking about consequences and saying, "Yeah, that application would get me to this place." And I don't mean to be dismissive of this. This is part of their constitutional ethos. It's not necessarily mine. But their ethos is the role of the judiciary is sometimes to take a look at political and legal culture and how it has changed over time, and how these words would get you to a certain place that everybody thinks is wrong or absurd, and so you just shouldn't do it. And they think, in that way, in a way that stricter textualists and originalists don't tend to.

 

Chayila Kleist:  The next audience question looks to the future ramifications and, potentially, ramifications for Congress. And so, an attendee asks, "Is there any chance that Congress and the staff therein might take this case to heart and start writing less ambiguous language? 'Has none or, has one or, has all of,' etc.? Or is this unlikely to have an effect?”

 

Vikrant. P. Reddy:  I think that the statutory drafting from Congress has been very sloppy for a very long time now. And there have been a lot of cases like this — some criminal cases, some civil cases — where you just kind of marvel at how the Congress didn't see this problem coming. But maybe that's unfair of me. Maybe if you're on the inside, and things are going a million miles a minute -- I remember in late 2018, Congress was really trying to scramble to get this over the line. There were some advocates of the First Step Act. Senator Mike Lee was one of them, among the Republicans. I want to say Senator Booker among the Democrats. 

 

There was a strong bipartisan coalition. They really were trying to get this done. And they were trying to get it done before Congress's time ran out. And I do remember following this and how quickly everything was evolving in, literally, December of 2018, as they were trying to get it over the finish line. Maybe, when you're in a situation like that, things get sloppy. And that's why we have the courts to parse through these kinds of drafting errors and problems. But that's a long way of saying I'm afraid I don't have a lot of hope for the Congressional drafting process getting to be more precise, in the near future.

 

Chayila Kleist:  Well, your comment on leaving it up to the courts — where that's why you have the courts — tees up the next question pretty well. “Did the Supreme Court just make more work for itself? How many other statutes where 'and' means 'and' or doesn't, are there, that that could be the conversation we need to have, or they need to have?"

 

Vikrant. P. Reddy:  I don't know if they made more work for themselves. I think the work was always going to be there, especially if you have circuit splits. You're right, Chayila. This is what the Court is for. I remember, one time, attending an oral argument where the Court asked the lawyer some question or another, and the lawyer said something like, "That's an awfully fanciful hypothetical." And the Court said, "That's what we're here for, to think through fanciful hypotheticals and figure out the application. That's our whole job."

 

So, yeah, I don't know if it's more work for themselves. But we're going to be dealing with a lot of these, moving forward, because we've dealt with a lot of them in the past. Maybe what I will say, that's a more helpful answer is that, with the first Step Act in particular, there have been a lot of points of ambiguous drafting that have landed this particular legislation in the Supreme Court. I can't remember all the cases or all the details right now. But off the top of my head, I can certainly think of three different First Step Act cases that have landed in the Court. I think there will be more in the future. Like I said, it got a little rushed in late 2018, as they were trying to get this thing over the finish line.

 

And for people who work in advocacy, I think it's really an important lesson that just because you are pushing for some kind of a law, and you get it passed by Congress, doesn't mean that your work is done. That law is going to be subject to interpretation in all kinds of ways. It's going to end up in front of the district courts, the circuit courts, and sometimes, ultimately, the Supreme Court. Getting the law passed is really just step one. It's the implementation of the law that then takes up a whole lot of your time. 

 

Chayila Kleist:  Got it. Thank you. Moving to a little bit of a bigger picture on both decisions, what arguments or questions were you surprised to see raised, in either opinion, if anything? And I'll ask the converse as well. What were you surprised not to see, or would you have liked to see, that wasn't? 

 

Vikrant. P. Reddy:  I can answer both those questions together. I was a little surprised that Justice Gorsuch could not peel off a single fellow conservative justice for his ultra-textualist "and" means "and" argument. And there actually were some commentators who were wondering, because the Gorsuch opinion actually is quite long, some people are wondering, was this, maybe, a majority opinion? Did he originally have Thomas or Barrett, or some of these justices who have a kind of stricter textualist reputation? Did he originally have them, and somehow lose them along the way? I'm not sure whether or not that's true.

 

At oral argument, it did seem like Pulsifer probably was headed towards losing. But I am just very surprised that he could not get even one other conservative justice to take his point of view on this. So that's the thing that surprised me the most. And you asked, Chayila, what would I like to have seen? Honestly, I would have liked to have seen that. My sympathies are more with Gorsuch's argument. 

 

And my sympathies, just personally, are with pretty rigorous textualism. I think that's a good way to do jurisprudence. And I love that Gorsuch, and Scalia before him, take it so seriously, even in areas like criminal justice where I think there are people who are otherwise textualists who sometimes draw lines and say, "Yeah, but I won't be a textualist there." No, Gorsuch, and Scalia before him, they're textualists everywhere. I kind of like that attitude. I wish Gorsuch could have found a pal on that.  

 

Chayila Kleist:  Fair enough. We've had a little bit of a conversation on future ramifications. But I have a couple more questions concerning the impact of this decision. Other than the impact for the parties in the case itself — so, Pulsifer — what, if anything, will be the immediate impact of this decision, both for those being sentenced under the First Step Act, and for judges? What other cases are there currently ongoing that could be affected by this ruling? What are the immediate changes?

 

Vikrant. P. Reddy:  Well, the immediate consequences, I'm sorry to say are for about 10,000 federal defendants who are in this position, which is to say that they have not done all three of the things in Section 2553 (f) (1), but they've done one or maybe two of those things. Those people are not eligible for the safety valve now. That's pretty clear. And so, they are going to be subject to the mandatory minimum, and that could be up to 15 years behind bars. And that's just the way the cards fell. And that's the most immediate impact. 

 

      Now, I guess you might wonder whether or not step two is that Congress will go in and "fix that problem." But that depends on whether or not Congress thinks it's a problem. And there may be many people in Congress who feel — particularly in the wake of our recent uptick in crime — that this is a perfectly acceptable result, and they're happy with it. I don't know. Crime politics are very complicated right now. Crime had been going down in this country for close to two decades, up until 2020. And then, violent crime rates started to tick up. It was just violent crime, I should say, not other kinds of crime. Although that's kind of a, "Other than that, how was the play, Mrs. Lincoln?" kind of a thing to say, right? 

 

Violent crime is the crime we're most concerned about. Violent crime rates did start to tick up all over the country in 2020. We still don't entirely know why. It's a combination of what happened during the pandemic and what happened in the wake of the George Floyd riots and how law enforcement reacted. It's a huge bag of things. But we do know that, in the past year, crime has gone down in -- I want to have the statistic exactly right. I probably won't. But close enough. Crime has gone down in all of America's 35 largest cities, except for two: Memphis, I'm sorry, and Washington D.C., where I happen to live. I'm sorry. They're the two exceptions. 

 

But, broadly speaking, 33 out of 35 ain't bad. Violent crime is, finally, happily, going back down. And when crime rates are in decline, you're able to have a conversation about criminal justice that, perhaps, is less heated, and is more, I think, more thoughtful. But you can understand why, when crime rates are going up, people kind of feel like, look, this is not the time to think through grammar and the Bill of Rights and statutes. This is the time to just get tough, tough, tough.

 

We're coming out of what had been a brief crime spike. And there are probably still a lot of people who worry about that. And a lot of those people are in Congress. And I find it hard to think that they're going to go back and say, "Let's clarify what we meant by the word "and" in the First Step Act here." I think they probably have other priorities they'll get to. 

 

Chayila Kleist:  Fair enough. To clarify, this won't apply retroactively. You mentioned there's circuit splits. And so, there have to have been some defendants who were told. "Oh, if you don't have all three, then you're eligible." 

 

Vikrant. P. Reddy:  Yeah, yeah, yeah.

 

Chayila Kleist:  Their sentences stay the same?

 

Vikrant. P. Reddy:  That will not apply retroactively. 

 

Chayila Kleist:  Okay.

 

Vikrant. P. Reddy:  Although, you could imagine another Supreme Court case coming up through the pipeline, in which that question is asked. And I don't remember the details now, but there was a First Step Act case in which they decided — I can't remember now — whatever it was they decided. And then, the following year, the case came back again. And I said, when I first saw it on my desk, I said, "What is this? I thought this was resolved last year." And it turns out it was the same case, but now on the question of whether or not it was retroactive. So, who knows? That kind of thing can happen.

 

Chayila Kleist:  Okay. Looking at entities not directly affected by this, what downstream effects could there be? And what industries, areas of law, or individuals should be paying attention to the indirect effects of this decision?

 

Vikrant. P. Reddy:  I think, within the world of advocates, you're always looking to try to figure out how the court is analyzing cases. And you have seen a movement, certainly since President Trump put Justice Gorsuch, Justice Barrett, and Justice Kavanaugh on the Court, you have seen a movement among advocates towards embracing textualism and originalism. There is a group in New York, the Brennan Center, which is a criminal justice advocacy group. And they put together, recently, this advisory board full of historians who would help them make arguments based on history and originalism when they're filing amicus briefs in front of the Supreme Court. 

 

I found it absolutely fascinating because, historically, they didn't care to make those kinds of arguments. But I think they've simply concluded that we are not going to be players in front of the Court at all unless we're at least trying to make arguments about history and originalism. Now, for what it's worth, I'm not sure that my analysis of history will match up with the historical analysis of some of the people on that advisory board. But that's a separate matter. The fact that they feel like they've got to at least try, I think, is a really important point about where our legal culture is headed. 

 

So, anyway, that's a long preamble to say, so now, people are going to look and see how the Court is looking at textual matters. I do think that, when you look at it, you might conclude — and I'm sad to say, because I tend to be a little bit libertarian on these things — I'm sad to say you might conclude that there are some justices who are not going to apply textualism in the criminal justice and criminal law context. And maybe I'm wrong about that. Maybe I'm being unfair to those justices. But, based on this opinion and a few other opinions I've seen in recent years, that's my sense of it. But it is also my sense that Justice Gorsuch is trying very hard to pull people over to his way of thinking about things. And Justice Scalia had some successes in doing that sort of thing when he was on the Court. And, like I said, Gorsuch could end up being the same. We just don't know yet. 

 

Chayila Kleist:  Got it. Well, last question from me. And then, barring any questions from our audience, we may get to give everybody back a little bit of their afternoons. Now that we have the decision, Pulsifer knows their answer, what questions remain unanswered, if any?

 

Vikrant. P. Reddy:  Well, retroactivity, I guess. We just talked about that. What else remains unanswered? I guess just the bigger questions, the broader questions about how the Court and Congress really is thinking about crime and criminal justice and laws that are dedicated to protecting our public safety, but also ensuring that we are protecting constitutional rights, including defendant's rights. This has been a difficult set of questions forever. Because these two things are always in tension and you're trying to get the balance exactly right. And you never quite can. But that's what the Court is there for, to keep trying. 

 

Chayila Kleist:  Fair enough. Any final thoughts that you want to offer?

 

Vikrant. P. Reddy:  Maybe just that, once again, this is one of those cases where the dissent is incredibly interesting and you learn a lot from reading it, and one of those cases that resist cheap narratives about how the Court is 6-3 and the cases always go the same way. It doesn't work that way. It's not quite that simple. And, also, The Very Hungry Caterpillar is a terrific book which everybody should follow the Kagan citation and read. 

 

Chayila Kleist:  Fabulous. Well, with that, we can wrap it there. Mr. Reddy, thank you so much for joining us today. We really appreciate you lending us a portion of your afternoon and sharing your expertise and insight. Thank you also to our audience for joining and participating.  We welcome listener feedback by email at [email protected]. And, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.