Court to deliver the unsettling news

Does “And” Really Mean “And”? Not Always, the Supreme Court Rules.

As a result, thousands of people will serve longer prison terms.

DANIEL KING

Just when you thought “and” meant “and,” and “or” meant “or,” along comes the Supreme Court to deliver the unsettling news: Your grammar is all wrong.

This historic toppling of words’ ordinary meaning comes from a recent ruling in which the court dashed the hopes of thousands of criminal defendants seeking reduced prison time. A majority of the justices found that the word “and”—at least as it’s written in a key section of a landmark law aimed at reducing mass incarceration—doesn’t mean what “and” usually means.

For anyone who isn’t a legal scholar, a copy editor, or an obsessive grammar nut, the debate here can be tough to follow. At issue was whether “and” in a provision of the Trump-era First Step Act was intentionally or mistakenly written to conjoin requirements for eligibility. For thousands of defendants, relief from mandatory minimum sentencing rested on whether “and” should be read as combining the set of conditions after the words “does not have.” In the puzzling provision, a defendant is eligible for relief if:

the defendant does not have—

(A) more than 4 criminal history points…;

(B) a prior 3-point offense…; and

(C) a prior 2-point violent offense…

(“Points” refers to the system of sentencing based on points assigned to various types of crimes.)

As I reported last year, lower courts were sharply divided on the vital question of whether “and” bundles the conditions—as in, you don’t have (A), don’t have (B), and don’t have (C)—which would mean a defendant who lacked any one of these conditions would be eligible for relief. The alternative reading, advocated by the Justice Department, holds that “and” really means “or”—that a defendant who met even one of the conditions would not be eligible for relief. In its 6–3 decision, the court sided with the DOJ’s interpretation, dramatically narrowing the scope of the law. The implications are profound: More than 10,000 people imprisoned since the law took effect will lose the chance to have their sentences reduced, and thousands more will face stiffer sentencing in the future.

So how did the justices reach this conclusion?

Taken at face value, the petitioner’s reading seemed obvious: He was eligible for relief because he didn’t meet all three conditions bundled by “and.” But the court’s majority disagreed, saying that any of the conditions satisfies the “does not” test because the law’s calculations would be incoherent otherwise. Someone with both the 3-point offense from (B) and the 2-point offense from (C) would have at least 5 points and automatically exceed the 4 points in (A), making (A) extraneous. To give (A) meaning, the court said “and” has to function as “or.” The ordinary meaning of “and” would so disjoint the law mathematically that the court ruled from context, not just text.

The court also found unpersuasive the ordinary-meaning argument that “and” is always conjunctive after a negative, like “Don’t drink and drive” means you could maybe do either but can’t do both. Writing for the majority, Justice Elena Kagan brushed that example aside. “For every negative statement [the petitioner] offers up, another cuts the opposite way,” she noted, citing a counterexample: “If someone says ‘I’m not free on Saturday and Sunday’…he most likely means ‘I’m not free on Saturday and I’m not free on Sunday’; he is not saying that although he cannot go away for a full weekend, he can make plans on one of those days.”

“Similarly,” Kagan added, “if a person says, ‘I didn’t like his mother and father,’ he probably means ‘I didn’t like his mother and I didn’t like his father’—not that he didn’t like the two in combination.”

Kagan’s and the petitioner’s counterexamples are each coherent, but they’re opposites, demonstrating that “and” serves either purpose. So much for shared meaning.

What’s a court to do when the tools of grammar don’t solve grammar? Argue over something else: the definition of “ambiguous.” Not only did the text divide the court, but even the question of whether the text is ambiguous divided the court. When a law is ambiguous, the rule of “lenity” often compels courts to favor defendants. That didn’t happen here because the court found the law un-ambiguous; it said the mere existence of a textual dispute—even among highly trained federal judges on multiple courts—is not proof of ambiguity: “Although there are two grammatically permissible readings…in context its text is susceptible of only one possible construction,” Kagan asserted. “That leaves no role for lenity to play.”

Ouch. The majority justices not only flunked the dissenting justices in grammar, but said they’re wrong to think there’s even a debate. Justice Neil Gorsuch did not take kindly to the scold. In his dissent, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, Gorsuch defended the ordinary meaning of “and” and ripped the “gymnastics” required to turn it into “or.” He criticized the majority for claiming to care about context but crushing the chances of nonviolent defendants seeking relief, people for whom the First Step Act was presumably intended but now, thanks to Kagan and her colleagues, “offers no hope.”

“Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result,” Gorsuch lamented. “Ordinary meaning is its first victim.”

“I think Justice Gorsuch’s dissent really nails it,” professor Erica Zunkel of the University of Chicago Law School tells me, noting that the dissenters’ view aligns with how conservative theorists tend to argue the law should be interpreted. “The Federalist Society often complains of progressive activist judges who insert their policy preferences for what the law says—seems an apt criticism of what the majority did” in this case.

A striking aspect of the decision is that it did not split along ideological lines. Kagan, a liberal Obama appointee, joined five conservative justices and wrote the majority opinion. Gorsuch, who is generally viewed as the most conservative Trump appointee, joined two liberals and wrote the dissent. The rise of textualism—the theory of interpretation that aims to understand what Congress’ words mean, as opposed to what Congress probably intended to say—has “led some conservative justices to liberal outcomes in recent cases,” says professor Adam Davidson of the University of Chicago.

Even before this ruling, it was widely accepted for courts to correct drafting errors in laws, known as scrivner’s errors, when mistakes were obvious. But the bar was purposefully high to do so because the risk of courts rewriting laws rather than fixing mere technical mistakes is tremendous. That would constitute a staggering judicial overreach, especially in a criminal context.

That bar just got lower.

It is now conceivable that courts will wade more deeply into policy disputes by citing this case to argue that courts are compelled to find and fix perceived errors of logic in ways that run counter to laws’ ordinary meaning.

Beyond the grammar implications, this is the first time a Supreme Court opinion has cited a survey of Americans to inform its interpretation of a statute’s ordinary meaning. In his dissent, Gorsuch referred to a study showing how readers tend to understand “does not have A, B, and C” a certain way: does not have the full set of items. Georgetown law professor Kevin Tobia tells me that while surveys have played a role in other contexts, such as trademark law, “in statutory interpretation this is new.”

“If the Court is interested to learn how an ‘ordinary speaker’ understands language, carefully constructed surveys are useful, and after [this ruling] I expect to see more surveys in briefs,” Tobia says. 

He recalls Chief Justice John Roberts asking in oral arguments of another case: “The most probably useful way of settling all these questions would be to take a poll of 100 ordinary speakers of English and ask them what [the statute] means, right?” Justice Samuel Alito suggested similarly that “perhaps someday it will be possible to evaluate these [linguistic] canons by conducting…an analysis of how particular combinations of words are used in a vast database of English prose.” 

This month’s ruling dealt a blow to the First Step Act, but Congress can pass a new law shoring it up. Sens. Dick Durbin and Chuck Grassley have introduced a bipartisan bill to do so. But any new legislation will incur the same grammatical scrutiny. Stanford law professor Jeff Fisher says oral arguments these days “can seem like being in a sixth grade English class.”

Or first grade. Kagan’s opinion cites the children’s book The Very Hungry Caterpillar for a grammar lesson: “On Saturday, [the caterpillar] ate through one piece of chocolate cake, one ice cream cone, one pickle, one slice of Swiss cheese, one slice of salami, one lollipop, one piece of cherry pie, one sausage, one cupcake and one slice of watermelon.” Like “does not have” in her interpretation of the First Step Act, the words “ate through” apply “independently and equivalently to each of the ten foodstuffs that follow,” Kagan writes.

Gorsuch has a response to this, too. “As the story goes, the caterpillar is in the process of becoming a butterfly,” he reminds us. “So suppose the story said the caterpillar ‘will remain a caterpillar if he does not eat (A) one sausage, (B) one cupcake, and (C) one slice of watermelon.'”

“I suspect most ordinary readers (and children) would have little trouble concluding that the sentence means that the caterpillar will remain a caterpillar unless he eats all three things,” Gorsuch explains. “One alone will not do.”