U.S. Supreme Court – Page 70 – Marquette University Law School Faculty Blog

Lenity and Mandatory Minimums

Post author:Michael M. O'Hear
Post published:November 23, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process U.S. Supreme Court

This is the third in a series of posts reviewing last term’s criminal cases in the Supreme Court and previewing the new term.

Three of last term’s criminal cases dealt with mandatory minimum sentencing statutes, as do two of the new term’s. The frequency with which these cases reach the Supreme Court underscores how ubiquitous mandatory minimums have become in federal criminal practice — a truly unfortunate state of affairs, given how clumsily these statutes are drafted and how badly they depart from sound sentencing policy. In any event, an interesting question lurking in the background of many of these cases is whether the rule of lenity should be applied in the same manner as it would be in a case involving a conventional criminal statute.

The rule of lenity indicates that ambiguous criminal statutes should be interpreted in favor of the defendant. As I suggested in my previous post, the Court does not seem especially consistent in its application of lenity and often adopts the government’s interpretation of statutes that strike me as clearly ambiguous (if that is not an oxymoron). A good example from last term is United States v. Hayes, 129 S. Ct. 1079 (2009). I agree with the conclusion of Chief Justice Roberts’s dissenting opinion: “This is a textbook case for application of the rule of lenity.”

In comparison with other criminal statutes, I have not detected any difference in the Court’s application of lenity to mandatory minimums. Last term, though, Justice Breyer offered an interesting argument that the rule of lenity has “special force in the context of mandatory minimum provisions.”

Constitutional View, Not Catholicism, Behind Scalia’s Opinions on Abortion

Post author:Alan J. Borsuk
Post published:November 23, 2009
Post category:Constitutional Interpretation Marquette Law School Speakers at Marquette U.S. Supreme Court

As a Catholic whose views are in line with those of Pope Benedict XVI, US Supreme Court Justice Antonin Scalia personally opposes abortion.

But what explains his opinions in every abortion-related case that has come to the court since Scalia became a justice in 1986 is not his Catholicism but his “originalist” interpretation of the US Constitution, the author of a new biography of Scalia said Monday.

Speaking at an “On the Issues” forum at Marquette Law School, Joan Biskupic told host Mike Gousha that Scalia has “parallel passions,” Catholicism and the law.

”You just cannot forget that he’s so darned conservative on the Constitution, independent of his Catholicism,“ Biskupic said. Scalia simply does not see anything in the text of the Constitution that supports giving a woman a right to have an abortion.

Biskupic said she found in researching Scalia’s life that his views on the Constitution have been consistent for all his adult life. People she talked to from each stage of his life described him as an originalist.

Biskupic described Scalia as a “many-layered” person.

Ambiguity Is Ambiguous

Post author:Michael M. O'Hear
Post published:November 16, 2009
Post category:Criminal Law & Process U.S. Supreme Court

In an earlier post, I offered some preliminary thoughts about the Supreme Court’s six criminal statutory interpretation cases last term. I observed that Justice Scalia’s textualist approach now seems dominant on the Court. The six opinions thus reflect a great deal of effort to parse the texts of the statutes, and we get a number of passages like this one from Flores-Figueroa v. United States, 129 S. Ct. 1886, 1890 (2009):

In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.

Stirring prose, no? One would hardly guess that two years of a man’s life were riding on this characterization of an obscure grammatical norm. Whatever else might be said for or against textualism, it does lead to opinions in which there is sometimes a disconcerting disconnect between the Court’s dry rhetoric and the human realities of crime and punishment.

In keeping with the Court’s current textualism, comparatively little attention is paid in the six opinions to legislative history, which is either ignored altogether or wheeled out as an apparent afterthought.

Of course, even textualists like Scalia acknowledge that texts are sometimes ambiguous. In such circumstances, rather than resort to legislative history or policy considerations, textualists will look to the traditional canons of statutory construction. One of these is the rule of lenity, which indicates that ambiguous criminal statutes should be interpreted in favor of the defendant.