Breasts, Cocaine / Crack, Constitutional Law, Drugs, FCC, Health Care / Medicine, Paris Hilton, SCOTUS, Sentencing Law, Supreme Court

The Supreme Court Is Fair To Crack Dealers, Corporations Paying Fines, And Those Who Use Profanity, Less So To Unions

Alas, no decision came out today in the health care reform case.

Frankly, I think the Justices are waiting to see how absurd the press coverage can get. The Washington Post has reported on two awesome ways to guess what the Court’s decision will be. First, use a stopwatch and a few mp3 files. If that doesn’t work, poll former SCOTUS clerks.

Both methods predict that Obamacare is going down.

The Post has not opined on a more reliable method to learn what the Court’s decision will be: chill out and wait for the Court to issue its decision next week. But they have pages to fill; one can forgive a bit of silliness.

The Court did, however, issue four opinions today, in some of the big cases on its docket.

What were they?

First, the Court held that when Congress passed a law called the “Fair Sentencing Act” it meant that the law should make sentencing more fair.

As many people recall, a few years ago a Senator ran for President. He was bold and progressive. He called for healing the divides in this great country and talked about the importance of reforming our nation’s drug laws.

He even said that medical marijuana seemed like not such a bad thing.

Of course, he became President and forgot much of that.

But the President and his administration did one great thing for our drug laws: they changed the mandatory minimum sentences that apply to crack cocaine.

In the past, a person who sold crack needed to sell one-hundredth of the same amount of powder to be subject to the same mandatory minimum sentence. Because many of the folks who use crack are African American, many people, including Obama, thought that was racially problematic (in the sense that it’s racist).

Under the Fair Sentencing Act, which the Administration did much to get passed, that ratio was changed to 18 to 1. It’s still racially problematic, just less so. That’s change you can believe in.

A question arose: how will the Fair Sentencing Act apply to people who committed their offense before the law passed, yet still remained to be sentenced.

The Seventh Circuit, under the doctrine of “Too Bad, So Sad,” held that because the law did not specify an effective date, it only applied to people who committed their crime after the Act was passed.

The New York Times opposed the Seventh Circuit’s position. So there was a split in authority.

The Supreme Court rejected that today, in Dorsey v. United States, an opinion by Justice Breyer.

Among other reasons (having to do with the details of the presumption of retroactivity of the Sentencing Reform Act, which I find interesting but, I would bet, you don’t), the Court noted that construing the Fair Sentencing Act to only apply to people who sold crack after the law passed would make things crazy and arbitrary in a way that we all try to pretend our criminal justice system isn’t.

So the Fair Sentencing Act applies to everyone! Happy day. There were four dissents, and I’d bet that any reader of this blog can guess them.

In other criminal justice news, the Court held that the rule in Apprendi – that a judge can’t raise the statutory maximum of a person’s sentence based on any fact not found by a jury and proven beyond a reasonable doubt – applies to fines.

The “person” here was Southern Union – a person in the Citizens United sense of “person”. The case was Southern Union v. United States. Justice Sotomayor delivered the Court’s opinion, joined by the Chief, Scalia, Thomas, Ginsburg, and Kagan. Breyer – that notorious Apprendi-hater – wrote a dissent joined by Kennedy and Alito.

The Court also made life harder for unions today. Justice Alito wrote for the Court. As he framed the issue, the case dealt with:

“whether the First Amendment allows a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union’s political and ideological activities.”

The Court’s answer is no. The case is Knox v. SEIU.

Finally, the Court issued the long awaited decision in FCC v. Fox. This is, of course, the case involving both Paris Hilton’s use of the F-word on live television, and the “nude buttocks of an adult female character [which] were shown for approximately seven seconds and the side of her breast for a moment” on live television.

As Justice Ginsburg told the American Constitution Society last week:

It is beyond my comprehension, I told my clerks, how the FCC can claim jurisdiction to ban words spoken in a hotel on French soil.

I understand she was joking, because the opinion wasn’t based on a false (but hopeful) believe that “Paris Hilton” refers solely to a hotel in Paris.

Rather, the Court held, that the FCC hadn’t given the networks fair notice in advance that you can’t show sideboob or say the F-word on TV.

Even though the decision was decided on fair notice grounds, the Court was careful to note that:

This is not to say, of course, that a graphic scene from Schindler’s List involving nude concentration camp prisoners is the same as the shower scene from NYPD Blue.


Deep words from One First Street, as the nation’s legal journalists despair of filling another weekend’s newspapers with speculation about the health care decision.

Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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