Strict Scrutiny - Speedy Sonia

Episode Date: February 16, 2022

Leah's dreams come true with an episode all about a resentencing case, and the meaning of the First Step Act of 2018-- Concepcion v. United States. Tiffany Wright and Easha Anand join in. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your host for today, Leah Lippman, and today I'm living my full fantasy. So this is just an episode about a re-sentencing case with awesome guests.

And this is kind of a tenure gift to myself. And so I reached out to Kim Kardashian. And she was like, sure, I'll do the episode, Leah. And I was like, no, no, no, no, no. Right? Like, this is a tenure gift. This needs to be special. I need to level up. And so I turned her down. And then I reached out to my real first choices, Tiffany Wright, adjunct professor and supervising attorney of the Human and Civil Rights Clinic at Howard Law School, also a senior associate at Oreck, and Isha Anand, Supreme Court and Appellate Counsel at MacArthur Justice Center. Welcome back to the show, Tiffany and Isha. I think you should have taken Kim. But happy to be here.

Happy to be back. Yeah, thank you so much. And happy tenure. Happy birthday. Happy Justice Breyer retirement. Happy thousandth Peloton ride. All rolled into one. This episode is for you, Leah.

Like I said, full fantasy. Okay. So as we promised on, I believe now two or three previous episodes, we are now doing the recap episode on Concepcion versus United States, an important sentencing slash resentencing case about persons who were convicted of crack cocaine offenses under federal drug laws. Okay, so maybe let's set the stage for what the actual statutes are and the legal question in this case, because it requires some explaining. So regular listeners are familiar with the old 100 to 1 crack to powder sentencing framework. That framework was adopted by Congress in the

Anti-Drug Abuse Act of 1986. And basically what Congress did is it enacted very different sentencing regimes for people convicted of cocaine offenses involving crack than it did for people convicted of cocaine offenses involving powder cocaine. 100 grams of powder cocaine would get you the same sentence as one gram of crack cocaine. So people with very similar amounts of crack and powder cocaine received vastly different sentences. Now that regime came under fire and was subject to considerable criticism because, among other things, it produced enormous racial disparities. By and large, black and brown defendants received considerably hars, Black and brown defendants received

considerably harsher sentences than white defendants who were sentenced for cocaine offenses. In part for that critique and others, Congress changed the sentencing regime for cocaine offenses in the Fair Sentencing Act of 2010. It reduced the disparity. But it did so only for people who were yet to be convicted and sentenced for cocaine offenses. That is, it changed the rules for people who had not yet been sentenced, but left in place the people who were sentenced under the old flawed regime that produced those vast racial disparities. That's where Kim Kardashian comes in. Because at her urging, as well as Van Jones and many others, Congress passed the First Step Act of 2018. And in that law, it said that courts that had previously imposed a sentence for a covered offense, which are defined to mean offenses involving cocaine, courts may impose a reduced sentence as if Sections 2 and 3 of the Fair Sentencing Act were in effect.

And the Fair Sentencing Act is what had reduced the disparity between cocaine powder and cocaine crack offenses. And so therefore, in the First Step Act, Congress made the changes to the Fair Sentencing Act retroactive. That is, it applied them to people who had already been convicted and sentenced. So the question in this case is what happens when a defendant is resentencing and what should that proceeding look like? The big question is whether courts can or must take into account other developments in the law or the facts beyond what the Fair Sentencing Act requires. And here's how it played out in this case, which demonstrates the importance of the question. So Mr. Concepcion received additional time in prison because he was designated as a career offender under the guidelines

because he had three prior convictions for violent felonies. But since his sentencing, one of his prior convictions was vacated and undone. And so he argues in light of later Supreme Court decisions interpreting what violent felony means, he's not actually a career offender because he doesn't have three convictions for crimes that qualify as violent felonies. And since his conviction, he argues that he's rehabilitated himself through education, among other things. And so at his resentencing, the question is whether or not the court may not, which is a position that the government abandoned and nobody defended here, whether the court could not consider

the changes in law and his factual circumstances, whether it could do so or whether it must do so. And that's the question that the court confronted in this case. And I think it might be helpful for listeners who are less immersed in the world of federal sentencing just to explain what the guidelines are so they understand how that might affect someone's sentence. So basically, when you are sentenced for a crime, a federal statute will provide a range in which courts might sentence you. And usually that range is tied to the offense for which you were convicted. Here, a crime involving a controlled substance. But then federal courts apply a vast web of rules known as the sentencing guidelines. And those guidelines provide additional guidance

for how courts should sentence someone within the range provided for by the federal statutes. And the sentencing guidelines invite courts to consider things like who the defendant is, and in particular, things like criminal history. And that is, in some ways, like one of the more significant sentencing guidelines. For people with prior convictions, the sentencing guidelines recommend considerable additional time, whereas if you don't have those prior convictions, the sentencing guidelines recommend less time. And the Supreme Court and other federal courts, you know, interpret what that sentencing guideline and what those sentencing guidelines mean. And so when they do so, they are affecting what range the sentencing

guidelines recommend for an individual defendant. And so the sentencing guidelines are kind of a key framework in federal sentencing. They provide courts with a lot of additional specific guidance about how to sentence a defendant. So the justices seem to think that there were three possible positions at play here, even though only two of them actually appeared in the brief. So the first is, as Tiffany alluded to, Mr. Concepcion's kind of frontline position, which is Section 404 requires something close to a plenary resentencing. It requires the district court to do what the district court kind of always does, which is you look at section 3553, which is the federal statute that governs sentencing. You start by calculating the recommended range that Leah was alluded to. And critically, that's the range based on the law and the facts as they stand today.

And Mr. Concepcion's textual hook here is that the First Step Act uses the word impose, which is the same word that Section 3553 uses as well. He's also got this strong argument in his favor that I think we'll get into a little more later, which is this is generally the way sentencing works, right? District courts calculate the relevant guidelines to anchor their discretion in a consistent way. Critically, they usually do it in terms of the person who stands before them today, the good and the bad, not kind of trying to imagine themselves at an earlier point in time. And then they exercise their discretion given that anchor and framework.

So that's option one. The district court must do this calculation, and then it can do whatever it wants after that, but it must kind of as an initial matter figure out what is the relevant sentencing range given the facts in the law today. Second option is the government's position and Mr. Concepcion's fallback position, that is, he still wins under this rule, which is, okay, you don't have to calculate that recommended sentencing range based on the current law and the facts, but you can do so. And even if you don't choose to calculate that range, you can still base your decision about reducing the sentence on new information, new facts, or new law. Basically, you don't have to do anything and can

do anything. Shorthanding this, the may position as opposed to the must position. And then the third option, which is sort of roughly speaking what the court below did, is the kind of must not option. And critically, neither party is actually defending this before the Supreme Court, but some of the justices brought it up. Sam is like, wait, is there a position on the table that is actually harsher to the defendant that we're not discussing? Because that's where I'd like to go. That sounds of interest to me. And surprisingly not the only one, though, right? I don't know if it was, he introduced it.

I can't tell if people were just picking up what he was putting down or independently other people wanted to. But this third position, I think there's a good reason the government's not really defending it, which is basically you have to ignore everything that has happened

since this defendant was originally sentenced. Sometimes decades ago, right? Good behavior in prison, bad behavior in prison, massive changes to the recommended sentencing range. All of that goes out the window. You sort of have to pretend that you are back when the person was initially sentenced, change only one variable, which is the statutory range for crack versus cocaine, and then impose the sentence. So ignoring facts in law, Sam Alito says. That's how courts should be deciding cases, right? That sounds familiar to me. Anyways, just a thought.

Right. Lots of context in which that happened. Right. So those are kind of roughly the three positions. And they kind of all, I think, got some airtime at argument. Yeah. So just on this point about whether these resentencing proceedings under the First Step Act are, as you say, like plenary resentencing proceedings or something less and how much less than like full and complete resentencing proceedings was obviously an important point of disagreement between Mr. Concepcion and the government. So the government, you know, is saying these aren't plenary resentencing proceedings. They're not like that big a deal. Courts aren't required to do all of the things that they would do at the original

sentencing. And I think this disagreement between the parties came up at oral argument when Justice Kagan asked, like a sane person who's trying to interpret a statute would ask, like, what is the background legal rule against which Congress enacted this statute? Like, what's kind of the default for how resentencings work? How do other resentencing proceedings work? And here, Mr. Concepcion and the federal government picked different background legal rules. They picked different kinds of resentencing proceedings that they thought were more analogous. So Mr. Concepcion says, look, a resentencing under the First Step Act, that's kind of like when an appellate court, you know, the court that reviews the sentence, says, well, you sentencing court, you messed up, you know, either on the law or something else, and they send the case back to the district court for resentencing. And when that happens, courts have to take into account subsequent developments in

the law, even though, you know, that resentencing isn't considered plenary in the sense that the defendant might not enjoy all of the procedural protections they enjoyed at the original sentencing. The government, by contrast, says, no, no, no, like the right analog is when the sentencing commission, the body that creates sentencing guidelines, changes a guideline and applies those changes to cases that have already been finished, that is, cases where the defendant has already been sentenced. And I think that's a super strange analogy to draw because one important difference between this is, you know, usually when courts are sentencing a defendant, they aren't required to sentence them within the guideline range. But when the sentencing

commission changes the guidelines and forces courts to redo cases using those guidelines, they can require courts to sentence defendants or only consider sentences within those guideline ranges. Whereas here in the First Step Act, Fair Sentencing Act context, we're dealing with Congress has changed the statutory range for sentences. And changing the statutory range is just a significantly more significant, I realize I said significant a bunch of times, but it's much more substantial because courts can't depart from that statutory range. And so when Congress alters that framework and makes it retroactive, it truly is a much more fundamental alteration to like the baseline

of these sentencings. And so I think it is more appropriate to think of a resentencing under the First Step Act as more like a remand to a district court when the district court made an error of law and the appellate court says, you need to do this again. And I actually found that a little bit comforting at this argument. Like when I read that a little bit comforting at this argument. Like when I read the briefs, I worried this argument was all going to be about the meaning of the word impose or the meaning of the word as if. And I think pretty early on- As if we were going to get a hand to the face and then the justices would truly be clueless, like all this textualism, puns, dealing with clueless. I tried. I tried.

I didn't even, I wish you guys could have seen Leah doing the clueless hand flip to the face. It was pretty, I really wish there were video with this particular podcast. But yeah. I am Cher Horowitz. And I think that that was a good thing, right? It sort of seemed like both sides, you know, despite Justice Thomas's kind of initial to each party, he asked at the beginning, like, what's your best textual hook? But despite his best efforts, I do think they were sort of arguing on the terrain of like, look, this statute doesn't say much. What's the relevant background principle against which it

was passed? And as Leah said, right, option one is like the way that district courts generally do resentencings all the time. Option two, which the government kind of puts forward, is this kind of very special kind of resentencing after a guidelines amendment. Some of the justices wanted a sort of option three background principle of quote-unquote finality, which I thought was a little bit strange given that the entire point of the First Step Act is to overcome that norm, right? It's an exception to finality. Just to explain what the background norm of finality is, so our listeners appreciate how

freaking ridiculous it is. The background norm of finality is once a sentence is final, that's it, and courts don't normally reopen cases. That's just another way of saying, like, usually when Congress changes the law about, you know, what a sentence is, those changes don't apply to cases that have already undergone sentencing. But Congress displaced that rule here. Congress specifically said we are no longer living under the presumption of finality where courts don't reopen sentences. And so it's just a super weird baseline to draw from. Totally agree. As is, as you and Pavan talked about, as is the kind of 3582 context. I think there's only one plausible baseline. And so if we're outside of this world in which everyone's hanging their hat on the meaning of as if, I feel relatively optimistic. But Leah, you maybe are a little bit more of a pessimist here. So I'll get to the pessimism in a bit, which we've already alluded to, namely, like Sam Alito's also living his full fantasy about like thinking about how to, you know, come up with a position that is even harsher for the criminal defendant than, you know, what the government is advocating

for. But I would just want to say one additional thing about this, you know, thinking about the context in which this statute was enacted point, because I think something to point out about the government's theory is, you know, the government and some justices want to say, well, the only thing that the First Step Act allows courts to do is consider, well, what if the defendant was sentenced as if the Fair Sentencing Act was in effect? But the Fair Sentencing Act only altered the statutory penalties for cocaine offenses. It didn't alter the guidelines for cocaine offenses. And so if the Sentencing Commission had never made any changes to the guidelines for cocaine offenses and made those changes retroactive, under the government's theory, like basically no defendant would ever be entitled to a lower sentence because they would still all be subject to those super high guideline ranges, even if the statute amended their sentencing ranges, you know, at least for those defendants who were sentenced like within the new statutory

ranges. And so I just think their position is really strange because if you think, again, as I think a sane person would, that courts have to consider the amended guidelines for cocaine offenses, the statute doesn't explicitly mention those. And the fact that the commission decided to change the guidelines and made them retroactive, like doesn't speak to what the statute commands and what it compels. And so I think any sensible interpretation about what Congress did here would have to include and courts have to consider like some additional changes to the guidelines too. Yeah. And another point that I thought was interesting that came up in an argument is whether or not the petitioner's rule gives sort of an unfair windfall to defendants who are not crack cocaine defendants.

And at one point, Justice Kavanaugh calls it the crack advantage. Oh, my God. And yeah, it was ridiculous. The crack advantage as if these defendants have been somehow benefit like there was a benefit to them from all of this. But this was a point that the chief, in addition to Justices Bar whole point of this was to create a distinction between different types of defendants and to do something for crack cocaine defendants that doesn't apply to others. I also thought it was a complete failure to really understand the breadth of the problem. The chief called it at one point a limited problem, but it really isn't. And yes, the problem of racial disparities in the criminal legal system, that narrow, limited issue. Yeah, it very rarely comes

up. But in fact, when these defendants stood before judges during this time, I think we have to remember that they weren't just facing these sentencing laws, but the lies about crack and who they were as people and their character carried throughout the entire process. You know, there was a belief at this time that these people were irredeemably criminal, that they were super predators beyond any hope of rehabilitation. And so all of the sentencing decisions made with respect to them, even the ones that went beyond the narrow category of statutes about crack cocaine sentencing, the myths and lies and racism permeated the entire sentencing proceeding.

And so for Congress to try to create a remedy that, according to the chief, is really, really narrow would make no sense, given that we all, including most members of Congress, have now recognized that this was really a broad problem. That's such a great point because it's also a problem that is so clearly tied to the sentencing regime. Because even outside of just the penalties that a statute imposes for a controlled substance offense, the general sentencing statute that Isha invoked, 3553A, directs courts to consider things like, well, whether this person is likely going to be rehabilitated. And if the considerations you're alluding to are going to affect that determination, that is going to affect the totality of the sentencing, not just this narrow question about

a precise range on a particular point. So yeah. can consider intervening legal developments in these proceedings, couldn't courts just decline to follow the sentencing guidelines that have been amended, but not retroactively, and follow the amended non-retroactive version of sentencing guidelines if they wanted to? And it's like, yes, you dolts. Your own cases permit courts to decline to follow guidelines after they calculate them if the court disagrees with them. That is, the court has said after a federal court determines this is the correct sentencing range that the guidelines provide for, a court can say, but I disagree with the policy underlying a specific guideline, or I think that results in a sentence that is too harsh.

And so I'm just not going to subject the defendant to additional time. And thankfully, there is a justice on the Supreme Court who understands federal sentencing, perhaps because they have been a federal district judge. And that is Justice Sotomayor. So Justice Sotomayor brought the court down to earth on this point, and we'll play her clip here. Counsel, much of the discretion that district courts have. Regrettably, that's what led to the sentencing guidelines and to the original mandatory nature. Once we overturn that and return discretion, the fact that judges have different views about factors and how to weigh them is

inherent in the sentencing process. I'm imagining that she's listening to this whole argument and then she just can't contain it anymore because she breaks in with, she comes in with, well, in my experience, as in the rest of you have no experience. But correct me if I'm wrong, but in my experience, this is how sentencing actually works. And it must be very frustrating to sit there and listen to people who have no idea about how it works try to opine on what the reality is. And she's not even in the room because she's having to participate remotely during these arguments. So she's having to listen over the Zoom and over the phone to all of these people saying things that just fail to understand basic points about sentencing. And she's like, please, like, let me in, you guys. I bet at some point she was grateful that she didn't have to be in the room for that moment. So she can make faces and an eye roll and turn to her clerk you know with a big wtf

um tiffany and i both know that look oh yes sometimes sometimes directed at us sometimes directed at other people um there was another moment that was sort of a little bit odd and i think at odds with sort of the way I think about sentencing at least working. And the chief kind of came in with this hypothetical where he says. It's like a police officer, you know, that you can't park here or you pay, you have to pay, you know, $20. You know, it's one thing to say, yeah, the officer can say, you know, I'm not going to give you a ticket. I see you're coming down the street or whatever it is. Doesn't have to, you know to enforce whatever discretion he has.

But the officer can't say, I think people ought to be able to park here. So I'm never going to give anybody a ticket for that. So I'm curious what you guys made of this hypothetical. Tameed had weird echoes of this position that the chief seemed to take over and over again at the oral argument over the DAPA program, the Deferred Action for Parents of Americans and Lawful Permanent Residence program, where he seemed to consistently be saying, well, it cannot be if you have discretion

to decline to enforce a law on a case-by-case basis. You cannot possibly say on a blanket basis, people who meet these criteria, I'm not going to enforce the law for. But like, why? Like, I've never fully understood that position. I don't think there's any textual basis for it. And I take this court's opinion, the Supreme Court's opinion in Kimbrough to say, district courts can do just that. You can calculate sentences. And at that point, the crack cocaine disparity was in full effect. A district

court can say, as a matter of course, every time I have a crack case, I'm going to ignore the guidelines. And that's totally okay. So it's another one that I found just totally puzzling, reflective, not even of a particular ideological bent, but of the chief's kind of very idiosyncratic view of how discretion operates. And I was curious what you guys made of that hypothetical that I don't think was quite the gotcha he thought it was. No, my reaction to it was pretty much what you just said. And I think Luke sort of handled this even in his intro by pointing out that what we're asking for here is really quite modest, right? Because of what the court has allowed sentencing judges to do and how low the

bar is, by saying that courts must consider, it just means you have to at least say, look, I read your stuff. I've considered it. And this is what I think. And the judges who want to hand down a sentence that reduces it significantly in light of everything we're talking about will, and judges who don't won't. And so this idea that like it's made worse if you announce a general principle, I just, I didn't see where he was going with that. Yeah. I generally thought Luke was terrific in this argument. I thought that was one example of it. I think one measure, and it's not a foolproof metric. Leah's written a lot about the kind of non-skill, non-merits reasons why justices interrupt or don't interrupt

people. But I do think that it was significant that even Alito, Kavanaugh, and Gorsuch, and I took the first to be kind of the most skeptical of Luke's position, apologized for interrupting him multiple times and asked him to finish his answer, which is a courtesy I think the justices rarely extend to each other, let alone to advocates. And I think one that reflected how helpful Luke was being to the justices here. This was Luke McLeod's first oral argument. He is an attorney at Williams & Connolly, a fellow member of the Sotomayor Hive. So he also clerked for Justice Sotomayor, like Isha and Tiffany. And I did want to point out one additional thing. This was his first argument. We've talked about the importance of paving the way for first-time arguments and first-time advocates at the Supreme Court. And the person who was the counsel of record that is listed as the lead attorney on the cert petition in this case, that is the document asking the Supreme Court to hear the case, was Lisa Blatt, who is also a lawyer at Williams and Connolly. And it appears she, you know, made the decision that, look, I have this really great lawyer who needs a Supreme

Court argument, and this is the case. And I think that, you know, turned out very well. And I hope it will turn out very well for Mr. Concepcion and others too. Yeah. And kudos to Lisa for doing this. I know she's done it a couple times before. I think the last time Isha and I were here together, it was to talk about diversity in appellate practice and specifically at the Supreme Court. And I think Lisa sets an example for how we can start to fix that. Like instead of giving media interviews about how the pipeline sucks and there is no pipeline, remove yourself as a clog in the pipe and like pave the way for other people who like probably wrote the briefs

and did the hard work that you're standing up to argue, like maybe give them a chance instead of taking your 10th or 20th or 30th argument. So kudos to Lisa for looking out for junior folks. And the junior folks she's looked out for have resulted in first time arguments for lawyers of color, for women in, you know in previous arguments. So it really is an important step for a lawyer like Lisa to take. Okay, so now we get to the Hulk Hogan-esque energy that we were alluding to previously, Namely, some of the justices seemed to want to embrace a position that the government wasn't arguing for, or at least they were interested in exploring this position. They wanted to explore the possibility that courts could not consider any intervening legal or factual developments

when they are considering whether to impose a reduced sentence under the First Step Act. And part of their reason to prefer this approach seemed to be, well, this avoids the disparities, that is the like unequal effects that might be created from permitting but not requiring courts to consider intervening legal developments. But again, like that is a disparity already baked into the sentencing regime. And so adopting this extremely draconian position that courts can't consider any intervening legal or factual developments in order to avoid something that is already just part of the sentencing regime is super odd. But at various points in the argument, the Chief Justice, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett were all like, well, how about we just say courts can only consider amendments to

the federal statutes governing cocaine offenses, which were just huge, big yikes moments for me in the oral argument. In part because I think it would be pretty bad just as a matter of procedure for the courts to go out and adopt a position that is not briefed in the case that no one is arguing for. I mean, the parties didn't have the opportunity to kind of address problems with that position because no one was asking for it. So just, yeah, concerning. I'm hoping it's not going to materialize, but curious what you all thought. I was shocked that they did not appoint an amicus to defend that position if they were going to be that concerned about it. I also thought what was shocking to me was like, they were so sort of enamored by this idea that they didn't take what Luke threw out, which was, and I think that his hypothetical was aimed at folks on the court, this idea that a court

should be able to consider if you like murdered someone in prison or like bad prison context. And they were so desperate to sort of talk about this must not consider rule that at one point, I think Justice Barrett was like, well, what's wrong with that? Like, why couldn't, why wouldn't it be okay if the court just couldn't consider that? So like, I was really disturbed by it and frankly, really worried by it. I'm hoping that I didn't hear anything suggesting that the chief had brought into this. So I hope it doesn't materialize, but very, very worrying. I do think at least some of the justices you listed, Leah, I hope were just trying to like reassure their colleagues. So Justice Gorsuch in the government's presentation says something at some point. He says, I thought the point of imposing a sentence was that you looked the defendant in the eyes

on the day he stands before you. Like asterisk, that's not actually how it's working in First Step Act proceedings. Everyone agrees that the defendant's not necessarily present. Don't have to be present. This is what happens when you appoint judges who never have to do any federal sentencing and have never represented a person in criminal proceedings.

But anyways. You want to talk about qualifications for the Supreme Court, I'm here all day long. and have never represented a person in criminal proceedings. But anyways. You want to talk about qualifications for the Supreme Court, I'm here all day long. You look the defendant in the eyes on the day he stands before you and take the measure of that person as a whole. And to be willfully blind to math wouldn't normally be part of the equation. I have to believe that the justice who says that understands how ludicrous the must not position would be.

Although like famous last words from me, I often say I have to believe before something that turns out to be totally false. I would hope at least if there are possibly five votes for that position, they would schedule it for re-argument and appoint an amicus to explore it, which to me seems like you have to do that if you are going to adopt a position that wasn't being briefed, especially because it is so much harsher than, you know, what the parties are arguing for and that what courts are really doing. One other clip to highlight from the oral argument. This is our mensch on the bench slash may I approach the mensch segment on this episode. And this was the moment when Justice Breyer revealed his obsession with the sentencing commission. Justice Breyer, of course, has served on the sentencing commission. His brother, another federal judge, Judge Breyer, who's a district judge in California, is currently the head of

the Sentencing Commission. And Justice Breyer loves the Sentencing Commission. He made no secret of that. So let's play that clip here. Okay, why have you said nothing about the commission? Is the department disowning the commission? Or am I making a big mistake? And please tell me or try to tell me if I'm making a big mistake. And how awesome would it be if his former clerk and former vice chair of the Sentencing Commission were to replace him, Judge Kinsanju Brown-Jackson, who is a great and powerful Black woman rather than a lesser Black woman? I think you just have to read her resume in order to see that, as are all the other Black women who are being considered. So I think that would just be really great. That would be his sentencing commission fantasy come true.

So there was a really strong coalition of amicus briefs supporting Mr. Concepcion, everyone from the Southern Poverty Law Center and ACLU on the left to Americans for Prosperity Foundation and the American Conservative Union Foundation on the right. I could wax rhapsodic about how great the Howard University Civil Rights Clinic Brief was, but I think it probably is better for me to pass the mic to Tiffany to explain sort of the thesis and what it was responding to. Yeah, so we wrote this because I was, frankly, personally compelled to write it because I think crack cocaine has shaped so much of my life. I grew up during this era and really thought that I saw Justice Thomas and Terry do something that I've seen him do a lot, which is to intentionally twist and distort history in a way that weaponizes race. And he did it in his

Grutter dissent. I'm sure we're going to see a reprise of that in the affirmative action cases that the court just granted, sort of perverting a Frederick Douglass quote. He did it in box with abortion. And in Terry, it wasn't just Justice Thomas, but he's writing for a majority of the court and tells this really sanitized version of the crack cocaine story where he says or suggests that these legislative actions weren't that bad because even Black leaders supported them. And it's like, yes, that's true. And Justice Sotomayor wrote in response to that. And unfortunately, I think she wrote on her own. Nobody else joined her.

But it's complex because I think she wrote on her own. Nobody else joined her. But it's complex because I think crack was difficult. It was hell. It brought a lot of suffering and a lot of misery. And there were people begging for more help. And the help was multifaceted. It was, yes, please help us with the violence that comes along, not just with crack, but with the introduction of any drug into a low income, poverty stricken area. But people also asked for treatment, asked for empathy, asked for help from mothers and parents who were struggling with crack cocaine addiction. But all we got was a punishment. And so we wrote the brief because I wanted to say that and to sort of anticipate that Justice Thomas might reprise his lies about crack cocaine. And I think it's just awful, given that, you know, in during this time period, Justice Thomas was at the highest levels of government and was very far removed from the people who were actually suffering with it and then lies about what that history actually was. So that was part of what

we wanted to get across in that brief. And as you alluded to, Tiffany, that's such salient context for the question of how big of a change was Congress thinking about when they put this into place, right? How much of the sentencing do you have to redo? That context suggests a lot of the sentencing, all of the sentencing. This was a really endemic problem that affected everyone's thinking and judges certainly weren't immune from that. Yeah. Read the brief, justices, and then cite the brief and act accordingly. And also maybe read some of your prior decisions on sentencing like Kimbrough and whatnot, and then we'll be all good. So there we go. Leah's assigning some homework. It's the professor in me. Can't help it. This is an extra reading, though. This is just like the basic required reading that I'm expecting of them. Okay. So extra credit. We wanted to also

briefly note two opinions that the Supreme Court handed down in part because they are authored by Justice Sotomayor. So I think we need to give her the nickname Speedy Sonia now because she is getting out those opinions faster than the other justices. And previously, you know, it used to be Justice Ginsburg, who was known as, you know, the justice getting out the opinions quickly. So Justice Sotomayor has certainly, you know, stepped into those shoes and like inherited, you know, the mantle that a bunch of people like associated with Justice Ginsburg and in more ways than one. Oh, having worked for her, I think she, I've always viewed her as speedy Sonia because she definitely, you know, wanted us to get things done in a timely fashion. And explain things in a timely fashion, the number of times where she'd say, okay, can you explain that to me in two minutes or less after I had rambled about a lot of extraneous details? Yes.

An embarrassing number of times that has happened to me. So, okay. Opinion number one, we'll try to do speedy Sonia justice here as we're recapping them. Hempel versus New York, which is a confrontation clause case. And it's an 8-1 opinion. Justice Sotomayor writes the majority, Justice Thomas dissents. And the basic issue is whether the state can introduce evidence that would otherwise violate the confrontation clause. So here it's the plea transcript of a co-defendant in a shooting who has left the country. So you can't cross-examine him. And the government, you know, the defendant at trial produces pretty good evidence. Well, this is really good testimony that actually that guy, that co-defendant, he's the one who committed the murder. And so in response,

the government wants to introduce the transcript of a plea colloquy, which most criminal practitioners I think would say, like not the world's most reliable evidence on the planet, like what you say when the government's about to give you a plea deal that is the difference between life in prison and not. That's the kind of thing about which you'd want to maybe cross-examine someone. But this witness happens to be outside the country. And New York has this rule that says you can elicit evidence that would otherwise violate the confrontation clause if you're doing it to respond to evidence that the defendant introduced or elicited. So here, defendant elicits evidence that other guy is the shooter.

In response, government says we should be able to introduce this plea transcript from other guy. And Supreme Court says, no, that's not how the confrontation clause works. There's no such opening the door exception to this constitutional guarantee. So Justice Alito, joined by Justice Kavanaugh, filed a concurring opinion with strong peak Lito vibes for new listeners. Peak Lito is when I describe Justice Alito trying to find different ways for criminal defendants to lose. Anyways, so here he spelled out how many defendants in situations similar to Mr. Hemphill could lose and maybe in Justice Alito's eyes should lose because those defendants could be deemed to have waived, that is given up, the right to confront adverse witnesses. So not a super promising sign for me

that Justice Kavanaugh joined such a peak Lito concurrence, but he has his own very strange, like authoritarian-esque law and order instincts that we've seen in some criminal cases, or at least I think so. As we noted, Justice Thomas dissented on procedural grounds saying that Mr. Hemphill had not raised this constitutional claim in the state courts. Second case was Hughes v. Northwestern.

Supreme Court announced a unanimous opinion, also written by Justice Sotomayor. And what the court basically said is the fact that people who participate in the retirement investment plan retain some ability to choose their investments didn't necessarily mean that the plan administrators had not violated the statute's duty of prudence in order to ensure that investments available to the investors did not include imprudent ones. That is probably all we have time for today. Thank you to Kim Kardashian for standing aside and allowing me to have my first choice of guests today. I'll be back in touch maybe another time. Thank you to Tiffany and Isha so much for coming back on the podcast to discuss this important resentencing case. Thanks for having us. I'm happy to be back. This was fun. You sound kind of like you were forced to say that, Isha. Thanks to our producer, Melody Rowell, and thanks to Eddie Cooper for making our music.