RBG Joins Conservatives In Criminal Sentencing Case

and on Bloomberg dot com Slash podcasts. Supreme Court Justices Ruth Bader Ginsburg and Neil Gorst's traded places in a manner in a criminal sentence in case, with Ginsburg joining the Conservatives in the majority and Gorset's joining the liberals in the minority in a five to four decision on supervised release that could have the effect of keeping defendants locked up longer. Joining me as Douglas Berman, Professor Mritz College of Law at the Ohio State University, So Doug.

Justice Clarence Thomas wrote the majority opinion that was joined by Chief Justice John Roberts, Justices Samuel Alito, Brett Kavanaugh, and Ruth Bader Ginsburg. It's a bit technical. Can you explain the reasoning briefly? It's actually very technical. It has to do with the issue of when a defendant, after he's already served a federal sentence and is now on let's notice, supervised release, which is when he's being watched

closely in community supervision. He goes and commits another crime, he can get prosecuted for that other crime, and in the state system he you know often will. But then the time he served in pre trial detention while dealing with that other crime, does that count as fulfilling his time on supervised release in the federal system or rather is that time told? In other words, he doesn't get credit for while he's locked up and supervised, locked up

in pre child detention for this period of supervision. And so, Uh, the statute that control supervisor release says, if you're in prison, you don't get credit for that time. But what was unclear is what if you're in prison before you've been convicted, rather than for serving another prison sentence. And that's what divided the court in this unusual way, this issue of statutor interpretation for this you know, very technical question of

when it's a certain kind of imprisonment pre trial detention. Uh, do you count that as serving part of your supervisor release or is that told instead? So do you understand or can you figure out why Ginzberg joined the conservatives and gore such the liberals in this case, not really, or at least there's nothing expressed in the opinion, you know. And when I first saw the breakdown, I'm like, well,

maybe it's a particular theory of statutory interpretation. You know. Oftentimes, uh, the justices have different approaches to interpreting statutes that don't

break down on the usual ideological lines. And my guess is that's probably the closest I can come up with for a theory of this that just um, Justice Ginsburg thought this was a more natural reading of the statute and so more inclined to have a kind of pro government position, whereas justice course that you actually has been fairly pro defendants rights in a lot of settings, may

well have thought, uh, it just wasn't clear enough. And um, you know, he's very much in justice scaliash tradition, where if the statute is not clear, uh, the defendant, the individual should always win over the government, um, in a criminal justice setting. And so I can I can sort of explain a little bit more why I think Gorsuch may have gone with the dissenters that with the more

pro defendant approach. Justice Ginsberg with the majority is rough it. Well, again, you know, the explanation for justice coursuch is he's he's a disinclined to um allow government power unless uh, the government is clearly in statute or in other ways, you know,

expressed the proper exercise of that power. So you know, he kind of thinks that tie goes to the defendant approach, even though he's conservative and other in other kinds of settings, and there's obviously a whole whole wing of sort of libertarian conservative thought that thinks that's that's what being a true conservative is. You don't let the government have power unless they're they're perfectly clear and perfectly legal in the way they do it. Criminal cases often end up with

the justices in unusual ideological groupings. Why is that, I think it's a function of the fact that, you know, Conservatives, though they tend to be historically and especially more recently, you know, for more punishment and sort of tougher on crime politically, they still also tend to believe in smaller government, believe in limited government. Think it's really important, uh that constitutional principles, uh constrain what government officials are able to do.

And so for a lot of different conservatives, those will play out in criminal cases in sort of competing ways. And I think especially with Justice Course, so we'll see with Justice Kavanaugh, it's true for Justice Thomas the fair amount as well. When there are particular provisions of the constitution that concern them that they think are especially important to safeguard, they'll end up voting for defendants over over the sort of tough on crime attitude that we think

is is pervasive UH in in conservative ideology. And then conversely, for some liberals it can work the other way. They may be more comfortable with broader grants of government power, even when that power extends to the operation of the criminal justice system. So there can be certain kinds of cases, certain procedural issues where liberals are more in favor to of government power than the conservatives are. And I sometimes say it keeps my job interested in because you can't

always predict every vote like you can now. You've said too in a Bloomberg News uh interview that this atypical ideological vote breakdown fits in with what you expect to be a theme for the rest of the term and some pending criminal decisions. What decisions are you thinking about? So the one I'm really keeping an eye on is a case that was argued way back in October called Gundi, which has to do with delegation of authority from Congress to the Attorney General to set the rules for sex

offender laws. And again, this is one of those settings where generally making it's liberals who are very in favor of agencies having broad power and being able to take delegations from Congress in general terms and then run with it. But in the criminal setting that means the attorney general has authority to define a law and more broadly to

encompass more criminal activity. And so um, I think the liberals there are perhaps struggling with how broad the rules should be the limit state power here, and likewise the conservatives. It's a sex offender case, so that's often the type of criminal that everybody's um kind of eager to to

be concerned about. But again, the broader principle of delegation of power from Congress to agencies turns this case into one that's that's going to be really interesting to see in the court has actually taken a very long time and unusually a long time ruling on it after hearing the argument in October, So I think there's probably a lot of um UH splits ideologically, and in sorting this out, the other two cases I have an eye on in

this respect. One involves the double jeopardy clause and was known as the dual sovereignty to lecturing UH, and that again often kicks in views of state and federal power in ways that change the usual ideological divides um in the criminal justice space. And then, last but not least, there's another one of these supervised release cases. But it has to do with what decisions judges can make versus juries.

That's been an issue for literally twenty years that we've seen different coalitions of justices on whether they're more functional they think judges should be able to do stuff without worrying too much about the formalities of how they do it, or more formalistic and think that no, the sixth Amendment right to a jury trial extends in all sorts of ways, even to sentencing settings. And so um Haymond and a gamble of the names of the cases I just referenced them.

Those two are ones that I'm keeping an eye on, and I'm excited to see how the court source them at all. Right, Well, we're excited with you, and we will check back with you when they do to see if there are any unusual alignments. Thanks so much. That's Douglas Burman. He's professor at Moritz College of Law at the Ohio State University. Thanks for listening to the Bloomberg

Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg