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Congressional conjunction turns Supreme Court argument into grammar class

Justices weigh if ‘and’ means ‘and’ in a criminal sentencing law

The Supreme Court building at sunset.
The Supreme Court building at sunset. (Bill Clark/CQ Roll Call file photo)

Supreme Court justices puzzled Monday over whether Congress meant “or” when it passed a law saying “and” in a case that could determine if some federal inmates qualify for a potential reduction in sentence.

Over nearly two hours in their first case of the term, the justices heard about when “and” means “and,” when “and” can mean “or.” They heard what the Senate drafting manual says about what “and” means.

And they discussed whether an “em dash distributed the language before it,” and if so, whether that refers to the whole clause or “could just be the clause that’s preceded by the comma.”

The arguments had the justices questioning how strict of grammarians they should be when interpreting the laws Congress passes, and how to fit grammar into the structure of a law.

“I mean, the people here who haven’t studied the case must think this is gibberish,” Justice Samuel A. Alito Jr. said at one point. “It might as well be — it might as well be Greek with all this stuff about distributive and em dash and all of that.”

The “and” at the center of the case comes from a “safety valve” Congress included in a 2018 sentencing and reentry law, which can allow a defendant to avoid mandatory minimums at sentencing.

The law lists three criteria related to prior criminal activity that would disqualify a defendant from the safety valve, and those criteria are joined by an “and.”

Shay Dvoretzky, the attorney for the defendant who brought the case, argued that a defendant must meet all three criteria to miss out on the safety valve, which means the “and” means “and.”

Frederick Liu, assistant to the Solicitor General, argued that a defendant who met any of the three criteria should miss out on the safety valve, which means the “and” actually means “or.”

Liu said that although it’s not the first reading of the word, the consequences of the defendant’s argument “make no sense” given the way the rest of the law is structured.

Dvoretzky said Congress used “and” to mean “and” several times in the statute.

“If Congress wants to change ‘and’ to ‘or’ in a revision of this statute, that’s a very easy change for them to make, but the burden of that ought to be on Congress, not on defendants whose liberty is at stake in the face of a seriously ambiguous statute,” Dvoretzky said.

Justice Brett M. Kavanaugh and others on the bench said they didn’t quite know what to make of the case.

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

Chief Justice John G. Roberts Jr. at one point questioned whether Congress focused this much on grammar.

“I mean, does Congress really, when they’re drafting these things, focus as much as we have been focusing today on the grammatical structure and differences?”

The justices are expected to make a decision by the conclusion of the term at the end of June.

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