The Supreme Court’s First Case Is a Brutal Grammatical Test

This is part of Opening Arguments, Slate’s coverage of the start of the latest Supreme Court term. We’re working to change the way the media covers the Supreme Court. Support our work when you join Slate Plus.

On Monday, the Supreme Court will reconvene for the start of a new term. By any estimation, the summer recess it is returning from was not a good one. A wave of ethics scandals revealed the justices’ repeated failure to disclose personal jet flights, luxury vacations, and other gifts. And polling data showed the court’s public approval mired at record lows.

If the justices are already worried about the court’s battered credibility, they won’t have to wait long for another test. The very first case of the year concerns an important issue of criminal justice. And it will give the court a chance to show if it is up to the task of humbly and evenhandedly applying the law.

The specific legal issue in Pulsifer v. United States is wonky, but the broader problem it reflects is not. America has a mass incarceration problem. More than 2 million Americans are imprisoned today, the highest rate in the world. The financial costs are immense, for both society and individuals. And the burden is visited disproportionately on people of color.

One major source of the mass incarceration problem is our over-punishment of nonviolent drug offenders. The number of individuals in prison for drug law violations is 20 times higher today than it was in 1980, and nearly half of all federal prisoners are incarcerated due to drug offenses.

In 2018, Congress took a small step toward ameliorating this problem. It did so by expanding what is known as the “safety valve” provision of the federal sentencing statute. Under that provision, offenders who would otherwise be given harsh mandatory minimum sentences are able to receive lesser prison terms if they satisfy certain criteria.

The question in Pulsifer is one only a grammarian or a lawyer could love: What does the safety valve provision mean when it promises shorter sentences to offenders who do not have: 1) a lengthy criminal history, 2) a prior serious offense, “and” 3) a prior violent offense? Two options are possible: Either an offender gets relief as long as they do not meet all three limiting criteria, or the offender will be disqualified from relief if they meet any one of the three limiting criteria.

As a matter of grammar, either interpretation is reasonable. Sometimes the word and is used to join together a list of requirements such that a limit is imposed only if all of them are met. If I tell my son that he can watch a movie tomorrow as long as he does not stay up late tonight and wake up early in the morning, the natural understanding is that he can watch the movie unless both conditions occur: He can watch the movie even if he goes to bed late or wakes up early—just not if he does both.

If the safety valve provision is understood the same way, that would mean Mark Pulsifer would receive a shorter sentence because it is undisputed that he meets only two of the three listed conditions that would limit sentencing leniency—Pulsifer has a prior serious felony and a lengthy criminal history but no prior violent offense. This interpretation would benefit Pulsifer (and thousands of other offenders in his position) by shaving months, or even years, off his sentence.

Yet the alternative understanding is also reasonable. Sometimes, we understand criteria in a list to be modified by the words that come before them. Thus, if I tell my students that they can use their notes during an exam as long as their notes do not include “commercial outlines and copies of prior exams,” my students would understand that permissible notes “do not include commercial outlines” and “do not include copies of prior exams.”

If the safety valve law is understood this way, Pulsifer would be entitled to a shorter sentence only if he does not have a lengthy criminal history, does not have a prior serious offense, and does not have a prior violent offense. Because he has the first two, he would be ineligible.

The complicated grammatical question in Pulsifer is thus one for which there is no clearly correct answer. Both textual readings are reasonable, and anyone who claims that they can clearly discern a single correct answer is guilty of supreme overconfidence.

Of course, that might be a perfect description of today’s Supreme Court justices. And because overconfidence famously unleashes other biases like partisan-motivated reasoning, Pulsifer’s case might well break down along familiar partisan lines, with the liberals siding with the defendant-favorable ruling and the conservatives reaching the opposite conclusion. Such an outcome would only further sully the court’s reputation as a body guided by political preferences.

There is another possibility. If the court wants to push back against the partisan trends in recent terms, it can heed the wise advice once offered by Judge Learned Hand, who remarked that “the spirit of liberty is the spirit which is not too sure that it is right.”

By humbly admitting uncertainty on the perplexing issue in Pulsifer, the court can apply a more promising approach to hard cases. It can rule against whichever side would be best able to avoid the harm of a mistaken ruling—an approach I’ve called the “least harm principle” of judicial decisionmaking.

Indeed, criminal law already has a doctrine well suited to this principle. It is the “rule of lenity,” or the idea that when criminal statutes are susceptible to multiple reasonable interpretations, the court should adopt the defendant-friendly reading.

The best reason for this rule is that it is virtually always harder for criminal defendants to avoid the harm of mistakenly harsh criminal punishments than for the government to avoid the harm of lenient sentences. Indeed, even if it loses this very case, the government would still have discretion to ask a trial judge to impose a harsher sentence on Pulsifer if it believes he is particularly dangerous.

In the end, the Pulsifer case will not be the most high-profile case the court decides this year. But the case will provide important initial insight into how the justices are planning to respond to a disastrous summer for its public legitimacy—not to mention the costly mass incarceration crisis that is decimating our communities. Here’s hoping it does so with a dose of humility.