WEBVTT - RBG Joins Conservatives In Criminal Sentencing Case

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com Slash podcasts. Supreme Court Justices

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<v Speaker 1>Ruth Bader Ginsburg and Neil Gorst's traded places in a

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<v Speaker 1>manner in a criminal sentence in case, with Ginsburg joining

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<v Speaker 1>the Conservatives in the majority and Gorset's joining the liberals

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<v Speaker 1>in the minority in a five to four decision on

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<v Speaker 1>supervised release that could have the effect of keeping defendants

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<v Speaker 1>locked up longer. Joining me as Douglas Berman, Professor Mritz

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<v Speaker 1>College of Law at the Ohio State University, So Doug.

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<v Speaker 1>Justice Clarence Thomas wrote the majority opinion that was joined

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<v Speaker 1>by Chief Justice John Roberts, Justices Samuel Alito, Brett Kavanaugh,

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<v Speaker 1>and Ruth Bader Ginsburg. It's a bit technical. Can you

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<v Speaker 1>explain the reasoning briefly? It's actually very technical. It has

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<v Speaker 1>to do with the issue of when a defendant, after

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<v Speaker 1>he's already served a federal sentence and is now on

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<v Speaker 1>let's notice, supervised release, which is when he's being watched

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<v Speaker 1>closely in community supervision. He goes and commits another crime,

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<v Speaker 1>he can get prosecuted for that other crime, and in

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<v Speaker 1>the state system he you know often will. But then

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<v Speaker 1>the time he served in pre trial detention while dealing

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<v Speaker 1>with that other crime, does that count as fulfilling his

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<v Speaker 1>time on supervised release in the federal system or rather

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<v Speaker 1>is that time told? In other words, he doesn't get

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<v Speaker 1>credit for while he's locked up and supervised, locked up

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<v Speaker 1>in pre child detention for this period of supervision. And so, Uh,

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<v Speaker 1>the statute that control supervisor release says, if you're in prison,

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<v Speaker 1>you don't get credit for that time. But what was

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<v Speaker 1>unclear is what if you're in prison before you've been convicted,

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<v Speaker 1>rather than for serving another prison sentence. And that's what

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<v Speaker 1>divided the court in this unusual way, this issue of

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<v Speaker 1>statutor interpretation for this you know, very technical question of

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<v Speaker 1>when it's a certain kind of imprisonment pre trial detention. Uh,

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<v Speaker 1>do you count that as serving part of your supervisor

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<v Speaker 1>release or is that told instead? So do you understand

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<v Speaker 1>or can you figure out why Ginzberg joined the conservatives

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<v Speaker 1>and gore such the liberals in this case, not really,

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<v Speaker 1>or at least there's nothing expressed in the opinion, you know.

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<v Speaker 1>And when I first saw the breakdown, I'm like, well,

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<v Speaker 1>maybe it's a particular theory of statutory interpretation. You know. Oftentimes, uh,

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<v Speaker 1>the justices have different approaches to interpreting statutes that don't

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<v Speaker 1>break down on the usual ideological lines. And my guess

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<v Speaker 1>is that's probably the closest I can come up with

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<v Speaker 1>for a theory of this that just um, Justice Ginsburg

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<v Speaker 1>thought this was a more natural reading of the statute

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<v Speaker 1>and so more inclined to have a kind of pro

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<v Speaker 1>government position, whereas justice course that you actually has been

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<v Speaker 1>fairly pro defendants rights in a lot of settings, may

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<v Speaker 1>well have thought, uh, it just wasn't clear enough. And um,

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<v Speaker 1>you know, he's very much in justice scaliash tradition, where

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<v Speaker 1>if the statute is not clear, uh, the defendant, the

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<v Speaker 1>individual should always win over the government, um, in a

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<v Speaker 1>criminal justice setting. And so I can I can sort

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<v Speaker 1>of explain a little bit more why I think Gorsuch

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<v Speaker 1>may have gone with the dissenters that with the more

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<v Speaker 1>pro defendant approach. Justice Ginsberg with the majority is rough it. Well, again,

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<v Speaker 1>you know, the explanation for justice coursuch is he's he's

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<v Speaker 1>a disinclined to um allow government power unless uh, the

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<v Speaker 1>government is clearly in statute or in other ways, you know,

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<v Speaker 1>expressed the proper exercise of that power. So you know,

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<v Speaker 1>he kind of thinks that tie goes to the defendant approach,

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<v Speaker 1>even though he's conservative and other in other kinds of settings,

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<v Speaker 1>and there's obviously a whole whole wing of sort of

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<v Speaker 1>libertarian conservative thought that thinks that's that's what being a

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<v Speaker 1>true conservative is. You don't let the government have power

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<v Speaker 1>unless they're they're perfectly clear and perfectly legal in the

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<v Speaker 1>way they do it. Criminal cases often end up with

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<v Speaker 1>the justices in unusual ideological groupings. Why is that, I

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<v Speaker 1>think it's a function of the fact that, you know, Conservatives,

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<v Speaker 1>though they tend to be historically and especially more recently,

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<v Speaker 1>you know, for more punishment and sort of tougher on

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<v Speaker 1>crime politically, they still also tend to believe in smaller government,

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<v Speaker 1>believe in limited government. Think it's really important, uh that

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<v Speaker 1>constitutional principles, uh constrain what government officials are able to do.

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<v Speaker 1>And so for a lot of different conservatives, those will

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<v Speaker 1>play out in criminal cases in sort of competing ways.

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<v Speaker 1>And I think especially with Justice Course, so we'll see

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<v Speaker 1>with Justice Kavanaugh, it's true for Justice Thomas the fair

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<v Speaker 1>amount as well. When there are particular provisions of the

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<v Speaker 1>constitution that concern them that they think are especially important

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<v Speaker 1>to safeguard, they'll end up voting for defendants over over

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<v Speaker 1>the sort of tough on crime attitude that we think

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<v Speaker 1>is is pervasive UH in in conservative ideology. And then conversely,

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<v Speaker 1>for some liberals it can work the other way. They

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<v Speaker 1>may be more comfortable with broader grants of government power,

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<v Speaker 1>even when that power extends to the operation of the

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<v Speaker 1>criminal justice system. So there can be certain kinds of cases,

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<v Speaker 1>certain procedural issues where liberals are more in favor to

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<v Speaker 1>of government power than the conservatives are. And I sometimes

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<v Speaker 1>say it keeps my job interested in because you can't

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<v Speaker 1>always predict every vote like you can now. You've said

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<v Speaker 1>too in a Bloomberg News uh interview that this atypical

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<v Speaker 1>ideological vote breakdown fits in with what you expect to

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<v Speaker 1>be a theme for the rest of the term and

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<v Speaker 1>some pending criminal decisions. What decisions are you thinking about?

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<v Speaker 1>So the one I'm really keeping an eye on is

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<v Speaker 1>a case that was argued way back in October called Gundi,

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<v Speaker 1>which has to do with delegation of authority from Congress

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<v Speaker 1>to the Attorney General to set the rules for sex

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<v Speaker 1>offender laws. And again, this is one of those settings

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<v Speaker 1>where generally making it's liberals who are very in favor

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<v Speaker 1>of agencies having broad power and being able to take

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<v Speaker 1>delegations from Congress in general terms and then run with it.

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<v Speaker 1>But in the criminal setting that means the attorney general

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<v Speaker 1>has authority to define a law and more broadly to

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<v Speaker 1>encompass more criminal activity. And so um, I think the

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<v Speaker 1>liberals there are perhaps struggling with how broad the rules

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<v Speaker 1>should be the limit state power here, and likewise the conservatives.

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<v Speaker 1>It's a sex offender case, so that's often the type

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<v Speaker 1>of criminal that everybody's um kind of eager to to

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<v Speaker 1>be concerned about. But again, the broader principle of delegation

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<v Speaker 1>of power from Congress to agencies turns this case into

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<v Speaker 1>one that's that's going to be really interesting to see

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<v Speaker 1>in the court has actually taken a very long time

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<v Speaker 1>and unusually a long time ruling on it after hearing

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<v Speaker 1>the argument in October, So I think there's probably a

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<v Speaker 1>lot of um UH splits ideologically, and in sorting this out,

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<v Speaker 1>the other two cases I have an eye on in

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<v Speaker 1>this respect. One involves the double jeopardy clause and was

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<v Speaker 1>known as the dual sovereignty to lecturing UH, and that

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<v Speaker 1>again often kicks in views of state and federal power

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<v Speaker 1>in ways that change the usual ideological divides um in

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<v Speaker 1>the criminal justice space. And then, last but not least,

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<v Speaker 1>there's another one of these supervised release cases. But it

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<v Speaker 1>has to do with what decisions judges can make versus juries.

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<v Speaker 1>That's been an issue for literally twenty years that we've

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<v Speaker 1>seen different coalitions of justices on whether they're more functional

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<v Speaker 1>they think judges should be able to do stuff without

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<v Speaker 1>worrying too much about the formalities of how they do it,

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<v Speaker 1>or more formalistic and think that no, the sixth Amendment

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<v Speaker 1>right to a jury trial extends in all sorts of ways,

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<v Speaker 1>even to sentencing settings. And so um Haymond and a

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<v Speaker 1>gamble of the names of the cases I just referenced them.

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<v Speaker 1>Those two are ones that I'm keeping an eye on,

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<v Speaker 1>and I'm excited to see how the court source them

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<v Speaker 1>at all. Right, Well, we're excited with you, and we

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<v Speaker 1>will check back with you when they do to see

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<v Speaker 1>if there are any unusual alignments. Thanks so much. That's

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<v Speaker 1>Douglas Burman. He's professor at Moritz College of Law at

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<v Speaker 1>the Ohio State University. Thanks for listening to the Bloomberg

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<v Speaker 1>Law Podcast. You can subscribe and listen to the show

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<v Speaker 1>on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast.

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<v Speaker 1>I'm June Brosso. This is Bloomberg