If you think only published opinions can be scrutinized by the U.S. Supreme Court, you will find this opinion by Justice Ginsburg of interest. The underlying Fourth Circuit Court of Appeals opinion is unpublished but can be found in the Federal Appendix, 174 F. App’x 798. Here, Justice Ginsburg overturns the court below and clears up confusion over sentencing guidelines for crack cocaine and other drugs. Tom Michener, graduating in May, wrote the summary of this case.

You can listen to Justice Ginsburg announce the majority opinion (check out the majority opinion jabot she wears in the law library lobby display) here: https://apps.oyez.org/player/#/roberts2/opinion_announcement_audio/22651.

Kimbrough v. United States, 552 U.S. 85 (2007)

Summary:

In 1986, during the Reagan administration’s anti-drug initiative, Congress enacted a federal sentencing policy of punishing crimes involving crack cocaine at a 100-to-1 ratio compared to crimes involving powder cocaine.[1] Using that ratio, the U.S. Sentencing Guidelines prescribed the same sentence for a defendant convicted of dealing 500 grams of powder cocaine as they did for a defendant convicted of dealing only five grams of crack cocaine.[2]

In 2004, Defendant Derrick Kimbrough pleaded guilty to various crack and powder cocaine possession offenses. Under the relevant statutes, Kimbrough was subject to 15 years to life in prison. To determine the appropriate sentence within that range, the district court judge used the Guidelines, a formulaic system to determine a sentence in all federal crimes. The Guidelines dictated a range of 19 to 22.5 years in prison due, in part, to the 100-1 ratio.

The judge, however, determined that a sentence in that range would have been “greater than necessary” to accomplish the purposes of sentencing as set out in the sentencing guidelines. The judge also noted that the case exemplified the “disproportionate and unjust effect that crack cocaine guidelines have in sentencing” and sentenced Kimbrough to 15 years, the minimum. In 2006, the Court of Appeals for the Fourth Circuit reversed, citing circuit precedent which stated that “a sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.” United States v. Kimbrough, 174 F. App’x 798, 799 (4th Cir. 2006) (citing United States v. Eura, 440 F.3d 625 (4th Cir.2006)).

As enacted, the Guidelines were mandatory. In 2005, about three years before Kimbrough and a year before the Court of Appeals’ decision in the case, however, the Court decided United States v. Booker, 543 U.S. 220 (2005). Booker excised the provision of the Guidelines requiring sentencing courts to impose a sentence within the applicable Guidelines range and rendered the Guidelines “effectively advisory.” There remained some ambiguity as to whether the crack/powder disparity adopted in the Guidelines had been rendered advisory by Booker, ambiguity that created disagreement between various courts of appeals. The ambiguity was cleared up by Justice Ruth Bader-Ginsburg’s majority opinion in Kimbrough.

After reviewing the Government’s various arguments, Justice Ginsburg wrote that none of the arguments “persuades us to hold the crack/powder ratio untouchable by sentencing courts.” She observed that the sentencing judge properly calculated the sentence under the Guidelines and that the judge took note of the criticism by the U.S. Sentencing Commission of the 100-to-1 ratio. She also observed that the judge did not purport to establish a ratio of his own. Rather, the district court “appropriately framed its final determination in line with [a Guideline provision’s] overarching instruction to ‘impose a sentence sufficient, but not greater than necessary,’ to accomplish the sentencing goals . . . .”

Thus, the sentence was reasonable, the sentencing judge did not abuse his discretion, and the opinion of the Court of Appeals was reversed.

[1] https://www.oyez.org/cases/2007/06-6330

[2] https://www.oyez.org/cases/2007/06-6330

Ginsburg Dissent: Gonzales v. Carhart, 550 U.S. 129 (2007)

The Supreme Court’s position on abortion has evolved and led to different outcomes over the years. In 2007, the Court heard Gonzales v. Carhart, a clash of morality, medicine, privacy, and women’s rights in abortions. In this summary of the case, Franklin Fegurgur, a 2L, highlights Justice Ginsburg’s dissent in which she voiced her concern over the precedents already established in Roe and Casey in which the Court said that “liberty finds no refuge in the jurisprudence of doubt.” Listen to Justice Ginsburg announce her dissent at https://apps.oyez.org/player/#/roberts2/opinion_announcement_audio/22038.

Facts:

In Gonzales, the Court considers the validity of the Partial-Birth Abortion Ban Act of 2003. Plaintiffs included Dr. Leroy Carhart as well as other physicians who performed late-term abortions and wanted the Court to stop the Act from going into effect. In 2003, Congress passed the Partial-Birth Abortion Ban Act in response to the Stenberg v. Carhart decision where the Court held that the Nebraska’s partial birth abortion statute violated the Constitution in the aftermath of Planned Parenthood v. Casey and Roe v. Wade. As in earlier decisions, the Court discussed the abortion procedures as the Act sought to regulate a manner of terminating fetal life.

One method the Act sought to prohibit was an intact dilation and extraction (D&E), a common late-term abortion procedure. Congress viewed the procedure as gruesome and inhumane. A main provision of the Act was to prohibit “knowingly performing a partial-birth abortion … that is [not] necessary to save the life of a mother.” The Act would effectually ban most late-term abortions which would place an undue burden on the right to an abortion established in Parenthood v. Casey.

The District Court agreed with the Plaintiffs that the Act was unconstitutional as it lacked an exception allowing the procedure where it is necessary to protect the health of the mother. Furthermore, the Act was “deficient because it covered not merely intact D&E but also certain other D&Es.” The Court of the Appeals for the Eighth Circuit affirmed the District Court’s ruling noting that the Constitution requires the legislatures to include a health exception for the mothers.

Issue:

Whether the Partial Abortion Ban Act violates the right of personal liberty protected by the Fifth Amendment because the Act lacks an exception for the health of the mother.

Holding:

Reversed. In a 5-4 decision, the Court upheld the Act by holding that the partial-birth abortion was not unconstitutionally vague nor did it impose an undue burden on the right to an abortion. Writing for the majority, Justice Kennedy stated that the “undue burden” test established in Casey is applicable to the instant case. The phrase referred to measures meant to discourage abortions, and to what degree these measures would be considered overly restrictive. Plaintiffs argued that an intact D&E is the safest method of abortion. Banning this safest method of abortion would not only place an undue burden upon the mother, but possibly risk her life. However, Justice Kennedy noted that the Act “allows a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right.” Furthermore, the majority noted that because the Act applies to only a specific method of abortion (intact D&E) the ban was “not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion.”

Dissent:

Justice Ginsburg sharply disagreed with the majority noting that “the Court’s hostility to the right Roe and Casey secured is not concealed.” She believed it was irrational for the State to further any legitimate interest in an equally gruesome procedure, which may be similarly characterized as brutal. In her view, “The law saves not a single fetus from destruction, for it targets only a method of performing abortion.” Furthermore, she believed that the Act would “chip away” a right that was declared by the Supreme Court as central to women’s lives. Although Gonzales did not discard previous cases such as Roe or Casey, it was inconsistent with the very principles of stare decisis. Instead of following clear prior holdings, the Court would take deference to this “legislative override of our Constitution-based rulings.”

Justice Ginsburg, true to her roots in litigation for gender equality said of the majority opinion when announcing her dissent, “Notably, the solution the Court approves is not to require doctors to inform women adequately of the different procedures they might choose and the risks each entails. Instead the Court shields the woman by denying her any choice in the matter and this way of protecting women recalls ancient notions about women’s place in society and under the constitution ideas that have long since been discredited.”