Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com Slash podcasts. Supreme Court Justices
Speaker 1: Ruth Bader Ginsburg and Neil Gorst's traded places in a
Speaker 1: manner in a criminal sentence in case, with Ginsburg joining
Speaker 1: the Conservatives in the majority and Gorset's joining the liberals
Speaker 1: in the minority in a five to four decision on
Speaker 1: supervised release that could have the effect of keeping defendants
Speaker 1: locked up longer. Joining me as Douglas Berman, Professor Mritz
Speaker 1: College of Law at the Ohio State University, So Doug.
Speaker 1: Justice Clarence Thomas wrote the majority opinion that was joined
Speaker 1: by Chief Justice John Roberts, Justices Samuel Alito, Brett Kavanaugh,
Speaker 1: and Ruth Bader Ginsburg. It's a bit technical. Can you
Speaker 1: explain the reasoning briefly? It's actually very technical. It has
Speaker 1: to do with the issue of when a defendant, after
Speaker 1: he's already served a federal sentence and is now on
Speaker 1: let's notice, supervised release, which is when he's being watched
Speaker 1: closely in community supervision. He goes and commits another crime,
Speaker 1: he can get prosecuted for that other crime, and in
Speaker 1: the state system he you know often will. But then
Speaker 1: the time he served in pre trial detention while dealing
Speaker 1: with that other crime, does that count as fulfilling his
Speaker 1: time on supervised release in the federal system or rather
Speaker 1: is that time told? In other words, he doesn't get
Speaker 1: credit for while he's locked up and supervised, locked up
Speaker 1: in pre child detention for this period of supervision. And so, Uh,
Speaker 1: the statute that control supervisor release says, if you're in prison,
Speaker 1: you don't get credit for that time. But what was
Speaker 1: unclear is what if you're in prison before you've been convicted,
Speaker 1: rather than for serving another prison sentence. And that's what
Speaker 1: divided the court in this unusual way, this issue of
Speaker 1: statutor interpretation for this you know, very technical question of
Speaker 1: when it's a certain kind of imprisonment pre trial detention. Uh,
Speaker 1: do you count that as serving part of your supervisor
Speaker 1: release or is that told instead? So do you understand
Speaker 1: or can you figure out why Ginzberg joined the conservatives
Speaker 1: and gore such the liberals in this case, not really,
Speaker 1: or at least there's nothing expressed in the opinion, you know.
Speaker 1: And when I first saw the breakdown, I'm like, well,
Speaker 1: maybe it's a particular theory of statutory interpretation. You know. Oftentimes, uh,
Speaker 1: the justices have different approaches to interpreting statutes that don't
Speaker 1: break down on the usual ideological lines. And my guess
Speaker 1: is that's probably the closest I can come up with
Speaker 1: for a theory of this that just um, Justice Ginsburg
Speaker 1: thought this was a more natural reading of the statute
Speaker 1: and so more inclined to have a kind of pro
Speaker 1: government position, whereas justice course that you actually has been
Speaker 1: fairly pro defendants rights in a lot of settings, may
Speaker 1: well have thought, uh, it just wasn't clear enough. And um,
Speaker 1: you know, he's very much in justice scaliash tradition, where
Speaker 1: if the statute is not clear, uh, the defendant, the
Speaker 1: individual should always win over the government, um, in a
Speaker 1: criminal justice setting. And so I can I can sort
Speaker 1: of explain a little bit more why I think Gorsuch
Speaker 1: may have gone with the dissenters that with the more
Speaker 1: pro defendant approach. Justice Ginsberg with the majority is rough it. Well, again,
Speaker 1: you know, the explanation for justice coursuch is he's he's
Speaker 1: a disinclined to um allow government power unless uh, the
Speaker 1: government is clearly in statute or in other ways, you know,
Speaker 1: expressed the proper exercise of that power. So you know,
Speaker 1: he kind of thinks that tie goes to the defendant approach,
Speaker 1: even though he's conservative and other in other kinds of settings,
Speaker 1: and there's obviously a whole whole wing of sort of
Speaker 1: libertarian conservative thought that thinks that's that's what being a
Speaker 1: true conservative is. You don't let the government have power
Speaker 1: unless they're they're perfectly clear and perfectly legal in the
Speaker 1: way they do it. Criminal cases often end up with
Speaker 1: the justices in unusual ideological groupings. Why is that, I
Speaker 1: think it's a function of the fact that, you know, Conservatives,
Speaker 1: though they tend to be historically and especially more recently,
Speaker 1: you know, for more punishment and sort of tougher on
Speaker 1: crime politically, they still also tend to believe in smaller government,
Speaker 1: believe in limited government. Think it's really important, uh that
Speaker 1: constitutional principles, uh constrain what government officials are able to do.
Speaker 1: And so for a lot of different conservatives, those will
Speaker 1: play out in criminal cases in sort of competing ways.
Speaker 1: And I think especially with Justice Course, so we'll see
Speaker 1: with Justice Kavanaugh, it's true for Justice Thomas the fair
Speaker 1: amount as well. When there are particular provisions of the
Speaker 1: constitution that concern them that they think are especially important
Speaker 1: to safeguard, they'll end up voting for defendants over over
Speaker 1: the sort of tough on crime attitude that we think
Speaker 1: is is pervasive UH in in conservative ideology. And then conversely,
Speaker 1: for some liberals it can work the other way. They
Speaker 1: may be more comfortable with broader grants of government power,
Speaker 1: even when that power extends to the operation of the
Speaker 1: criminal justice system. So there can be certain kinds of cases,
Speaker 1: certain procedural issues where liberals are more in favor to
Speaker 1: of government power than the conservatives are. And I sometimes
Speaker 1: say it keeps my job interested in because you can't
Speaker 1: always predict every vote like you can now. You've said
Speaker 1: too in a Bloomberg News uh interview that this atypical
Speaker 1: ideological vote breakdown fits in with what you expect to
Speaker 1: be a theme for the rest of the term and
Speaker 1: some pending criminal decisions. What decisions are you thinking about?
Speaker 1: So the one I'm really keeping an eye on is
Speaker 1: a case that was argued way back in October called Gundi,
Speaker 1: which has to do with delegation of authority from Congress
Speaker 1: to the Attorney General to set the rules for sex
Speaker 1: offender laws. And again, this is one of those settings
Speaker 1: where generally making it's liberals who are very in favor
Speaker 1: of agencies having broad power and being able to take
Speaker 1: delegations from Congress in general terms and then run with it.
Speaker 1: But in the criminal setting that means the attorney general
Speaker 1: has authority to define a law and more broadly to
Speaker 1: encompass more criminal activity. And so um, I think the
Speaker 1: liberals there are perhaps struggling with how broad the rules
Speaker 1: should be the limit state power here, and likewise the conservatives.
Speaker 1: It's a sex offender case, so that's often the type
Speaker 1: of criminal that everybody's um kind of eager to to
Speaker 1: be concerned about. But again, the broader principle of delegation
Speaker 1: of power from Congress to agencies turns this case into
Speaker 1: one that's that's going to be really interesting to see
Speaker 1: in the court has actually taken a very long time
Speaker 1: and unusually a long time ruling on it after hearing
Speaker 1: the argument in October, So I think there's probably a
Speaker 1: lot of um UH splits ideologically, and in sorting this out,
Speaker 1: the other two cases I have an eye on in
Speaker 1: this respect. One involves the double jeopardy clause and was
Speaker 1: known as the dual sovereignty to lecturing UH, and that
Speaker 1: again often kicks in views of state and federal power
Speaker 1: in ways that change the usual ideological divides um in
Speaker 1: the criminal justice space. And then, last but not least,
Speaker 1: there's another one of these supervised release cases. But it
Speaker 1: has to do with what decisions judges can make versus juries.
Speaker 1: That's been an issue for literally twenty years that we've
Speaker 1: seen different coalitions of justices on whether they're more functional
Speaker 1: they think judges should be able to do stuff without
Speaker 1: worrying too much about the formalities of how they do it,
Speaker 1: or more formalistic and think that no, the sixth Amendment
Speaker 1: right to a jury trial extends in all sorts of ways,
Speaker 1: even to sentencing settings. And so um Haymond and a
Speaker 1: gamble of the names of the cases I just referenced them.
Speaker 1: Those two are ones that I'm keeping an eye on,
Speaker 1: and I'm excited to see how the court source them
Speaker 1: at all. Right, Well, we're excited with you, and we
Speaker 1: will check back with you when they do to see
Speaker 1: if there are any unusual alignments. Thanks so much. That's
Speaker 1: Douglas Burman. He's professor at Moritz College of Law at
Speaker 1: the Ohio State University. Thanks for listening to the Bloomberg
Speaker 1: Law Podcast. You can subscribe and listen to the show
Speaker 1: on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast.
Speaker 1: I'm June Brosso. This is Bloomberg