Courthouse Rock: Justices play conjunction junction on first day of term

WASHINGTON (CN) — The Supreme Court kicked off the first day of its 2023 term Monday with an American schoolhouse classic: conjunction junction. 

“I thought there was an established rule in English grammar of how to read ‘and,’” Justice Brett Kavanaugh said. 

The nearly two-hour argument session had the justices fluctuating between differing grammatical theories in their attempt to get to the bottom of what lawmakers could have meant in 2018 when enacting the First Step Act's safety valve provision on mandatory minimum sentences for drug offenders. 

“Does Congress really focus as we have today on the grammar?” Chief Justice John Roberts asked.

The government put the question before the high court simply, “'And' is conjunctive … the question is what does 'and' join?” said Frederick Liu, assistant to the solicitor general at the Department of Justice. 

How the justices interpret "and" is not merely a grammar exercise; it has the potential to alter prison sentences for many drug offenders. One such person is Mark Pulsifer, who is facing over a decade in prison for selling methamphetamine in 2020. 

In 2018, former President Donald Trump signed the bipartisan criminal reform bill into law. A key function of the law was to exclude some nonviolent drug offenders from mandatory minimum sentences. Congress assigned a point value to various offenses and said a defendant must not have more than four criminal history points, a prior three-point offense, and a prior two-point offense. 

The key to the case is the "and." 

“In other words, is a defendant eligible for safety-valve relief so long as he does not have all three of (A), (B), and (C), or is he eligible only if he does not have (A), (B), or (C)?,” Shay Dvoretzky, an attorney with Skadden, Arps, Slate who is representing Pulsifer, wrote in his brief. 

Pulsifer’s fight before the high court is the result of two different drug sales to a purchaser who happened to be a confidential informant. A grand jury indicted Pulsifer on two counts. Citing a 2013 substance possession conviction, the government said it would ask for an enhanced sentence for his crimes. 

A plea agreement resulted in Pulsifer confessing his guilt to one count of distributing methamphetamine, with the government dismissing the second. 

Pulisfer’s prior conviction qualified him for a statutory minimum term of 15 years in prison, however, he argued he met the requirements for safety-valve relief under the First Step Act. 

Dvoretzky appeals to the textualists on the high court bench. His argument says that as long as defendants do not meet all the criteria — A, B and C — they are eligible for relief. 

“Plain meaning, context, and purpose — not to mention Occam’s razor — all point to the same conclusion: ‘and’ means ‘and,’” Dvoretzky wrote. “Ordinary English speakers understand that ‘and’ means ‘and,’ not ‘or.’”

The majority of justices were skeptical of this reading. Justice Elena Kagan said looking at the statute, it would just make sense to not keep repeating ‘and must not’ before every condition of the safety valve provision. 

“Who writes like that?” the Obama appointee said. 

Justice Brett Kavanaugh noted that the context of the statute is important. If the court accepted Pulisfer’s understanding of ‘and,’ then it would mean that offenders with more serious records would be eligible for relief while less serious ones would not. 

“That seems to be a serious contextual issue,” the Trump appointee said. 

The government argues any qualifying offense — A, B or C — would mean defendants would not meet the safety valve requirements. 

Pulsifer meets two of the three criteria — A and B — however, since he doesn’t meet the third, he argued he should not be subject to a mandatory minimum sentence. 

The lower court said the First Step Act is written “in the conjunctive,” so Pulsifer would have to prove he does not have all three qualifying offenses to be eligible for relief. He was sentenced to 13 and a half years in prison. The court of appeals affirmed. 

Urging the justices to affirm the lower court rulings, the government argues that ‘and’ distributes the prefatory phrase “does not have” to each subparagraph, meaning defendants can only meet the safety valve if they do not have any of the offenses. 

“Here, context makes clear that the distributive interpretation is correct,” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief. “That interpretation gives effect to every subparagraph, treating each criminal-history characteristic as an independently disqualifying condition.” 

The government’s understanding of ‘and’ did not skirt the justices’ ire. Justice Ketanji Brown Jackson said reading ‘and’ as the government does ignores the whole point of the First Step Act — to get rid of mandatory minimum sentences. 

“This is not a conversation, it's a statute,” the Biden appointee said. 

Follow @KelseyReichmann

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