“With Liberty and Justice For All”

The Pledge of Allegiance. If you grew up under an American education system, odds are you can probably recite this oath in your sleep. Arguably, the most notable stanza of the pledge is the infamous fortissimo coda: “with liberty and justice for all.” For years, American History courses have taken root in the patriotic precepts and age-old vernacular of the founding fathers. We are ingrained to robotically recite these words like marionettes, enslaved to the semantic strings of the constitution, often neglecting to stop and ponder what they really mean. What does “justice” truly entail in the context of the American judicial system and how much authority do the courts actually have in achieving it? And similarly, what is the role of U.S. courts in producing social reform and public policy? This essay will forge a deeper understanding of the aforementioned judicial examinations by answering the more specific inquiry: under what circumstances do the courts have the most authority and influence on social reform and public policy?

In considering this query, two schools of thought are presented among public policy scholars and judicial theory experts: the Dynamic and the Constrained Court Views. These two views draw the dichotomous line between those that are fervent in their belief that the US Supreme Court can affect widespread change, and those that believe the courts are too systemically constrained to accomplish significant reform. The Dynamic View maintains that the court’s have significant influence in educating the public and bringing light to certain issues. It advocates for the court’s ability to effectively push policy down the proverbial judicial chute by way of its accessibility to the public, its charge to bring people together to act on an issue, and its overall freedom from electoral constraints and institutional arrangements that tend to impede change. Advocates of this view often cite cases such as Brown vs. Board and Roe vs. Wade, judicial milestones that strived to completely alter the course of society. Whereas, the Constrained View speaks to the court’s limitations on social reform due to the boundaries of the constitutional rights in which it is given. It holds that enumerated rights restrict the capacity of judges to induce change, the judicial branch lacks the autonomy from other branches that is necessary to catalyze reform, and that courts lack the “power of the sword and purse” in terms of its inability to effectively implement orders through fiscal and militant means. Though the academic discourse regarding the application of these two views is largely binary, I argue against the concepts of the Constrained View and ultimately defend the theory that The Supreme Court is in fact inherently dynamic under recurrent judicial circumstances and ultimately has the fiduciary responsibility to wield its systemic power to incite significant change and reform.

In showcasing the court’s inherently dynamic position, this essay will analyze the 2007 Supreme Court case entitled, Kimbrough vs. The United States as it illustrates the court’s modeling of the Dynamic Court View, ultimately suggesting that the Supreme Court is likely to practice dynamism when the law is based upon statistically flawed and discriminatory logic, ushering in the need for the correction of an instated legal error. Unlike the widely discussed and overtly dynamic court decisions of Roe vs. Wade and Brown vs. Board, in which both rulings sought to explicitly overturn existing state laws and therefore drastically alter the course of social norms, cultural practices, and legislative mandates, the subtle obscurity and lack of apparent dynamism in the case of Kimbrough vs. The United States makes it an ideal candidate when arguing in defense of the court’s authority. This case, although paramount to judicial history, is a mundane case with comparatively less press coverage, visibility, and precedence than its more famous counterparts, thereby serving as a prime example of the court's inherent covert dynamic positioning.

In Kimbrough vs. The United States, petitioner Derrick Kimbrough, a black man from Virginia, pleaded guilty to the possession and distribution of fifty or more grams of crack cocaine. Per the Federal Sentencing Guidelines, Kimbrough’s offense would warrant a sentence within the range of 19 to 22.5 years. However, after considering these guidelines, the district judge deemed this sentence “ridiculous” and instead granted a lower sentence of 15 years in prison. The Federal Sentencing Guidelines were enacted by Congress as part of the Anti-drug Abuse Acts of 1986 and 1988. These guidelines included a 100-to-1 ratio on the amount of crack and powder cocaine that is required to engender mandatory minimum prison sentences. Since the establishment of the mandate, many questions surrounding the soundness of this law began to circulate, specifically in terms of its disproportionate effect on certain minority communities. Government statistics published in 2005 showed that African Americans made up 80% of those sentenced to prison for crack cocaine related offenses despite the fact that an estimated two-thirds of crack users at this time were white and hispanic. In a previous case entitled The United States v. Booker that took place two years earlier than Kimbrough, the Supreme Court established that the sentencing guidelines were to be “advisory only.” Therefore, while it remained obligatory that the U.S. Sentencing Guidelines be considered as a factor in the decision, ultimately “federal law requires courts to impose sentences sufficient, but not greater than necessary in order to promote a fair and just sentencing scheme”(18 U.S. Code § 3553). However, when the Government took this case to the appellate level, the U.S. Court of Appeals for the Fourth Circuit rejected the district court’s lenient sentencing, arguing that “trial judges act unreasonable when they depart from the guidelines on the basis of a disagreement with a congressional sentencing policy” (ACLU, 10). The Supreme Court ultimately ruled congruently with the trial judge, affirming the Court’s confidence in the “district court’s ability to maintain reasonably uniform approaches to cocaine sentencing” and that the Court’s decision to make the Federal Sentencing Guidelines advisory in Booker, confirmed the Court’s additional acceptance of “some non uniformity in sentencing” (Oyez, Kimbrough v. US).

In the Dynamic Court View, there exists three levels of constraint including doctrinal, institutional, and cultural. These constraints must be analyzed in order to solidify the Court’s alignment with this view. Doctrinal constraints are the limits on courts derived from statutes, court decisions, or administrative regulations. In the case of Kimbrough v. The United States, there exists weak textual constraints on the court that work to showcase its dynamism. Instead of being rooted in specific legal terms, the framing of the court’s decision was grounded in ambiguity. Justice Ruth Bader Ginsburg who authored the court’s majority opinion ascribed the basis of their decision on the precedent set two years prior by Booker v. The United States. In this case, the Supreme Court’s remedial opinion mandated district courts to read the Federal Sentencing Guidelines as “effectively advisory.” According to LexisNexis, in accord with 18 U.S.C. § 3553(a), “the Guidelines, formerly mandatory, now serve as one factor among several that courts must consider in determining an appropriate sentence. Booker further instructed that "reasonableness" [*91] is the standard controlling appellate review of the sentences that the district courts impose” (Lexis Nexis, Kimbrough v. United States). Additionally, the Cornell University Legal Institute Law Review delineates the clauses within the U.S. Code that discusses factors to be considered when imposing a sentence, stating, “the court shall impose a sentence sufficient, but not greater than necessary” (LII Cornell University). Seeing that the Supreme Court’s decision in Kimbrough rests heavily upon the district court’s ability to prioritize “reasonableness” and to ensure that sentences are both “sufficient but not greater than necessary,” it is evident that the framing of this ruling is subjective and grounded in legal equivocation regarding how the courts should go about implementing the Sentencing Guidelines. How does one quantify uniform “reasonableness” and “sufficiency” to effectively translate this into a formal sentence? This lack of legal specificity not only leaves room for interpretation among district court judges, it also firmly aligns with the lack of textual constraint needed to qualify the Dynamic Court View. When the Court’s opinion is not anchored in cogent legal texts, this implies a weak doctrinal constraint on its decision. Further evidence of this is showcased in the fact that there were procedural disagreements among the different levels of courts along the way. While the trial courts aligned themselves with the “advisory” precedent established by the Supreme Court, the appellate courts deemed it “unreasonable” for trial courts to exercise discretion in sentencing impositions. The existence of the courts’ opposition regarding both the interpretation and implementation of the guidelines speaks to the overall vagueness of the law. This ultimately triggered the Justice’s reversal of the appellate court’s decision, further solidifying the Supreme Court’s dynamic nature in this case.

Additionally, within the Justice’s decisions there were material disagreements on the true meaning of the law in question. In opposition to the language used in the majority opinion, Justice Thomas’ dissent reads, “we are now called upon to decide a multiplicity of questions that have no discernibly legal answers. These outcomes may be perfectly reasonable as a matter of policy, but they have no basis in law. Congress did not mandate a reasonableness standard of appellate review—that was a standard the remedial majority in Booker fashioned out of whole cloth” (JUSTIA 552 U.S. 85 2007). Thomas argues that the Court’s proposed solution to the Guidelines enacted by Congress led to the addition of a policy of “reasonableness” and “discretion” that is not rooted in formal law. Conversely, Justice Alito argues in his dissent that “a district judge is still required to give significant weight to the policy decisions embodied in the Guidelines” (JUSTIA 552 U.S. 85 2007). With this statement, it is only plausible to then beg the question: what defines “significant weight?” It is evident that the two dissents and the majority disagree on both the concept and the interpretation of the weight in which district courts ought to impose sentences, pointing to an abiding weak constraint of legal text and thereby affirming the Dynamic View.

Moreover, institutional constraints are another key component in determining the dynamism of the Supreme Court. Institutional constraints are the limits on courts that either stem from the internal structure in terms of how courts are organized, or the external structure in terms of how courts interact with other political actors. In the context of the court’s passivity, this was ultimately a weak constraint on judicial power due to the hyperactivity of public interest groups and repeat players. As Marc Galanter, Professor of Law Emeritus at the University of Wisconsin Law School, suggests, repeat players (those who are engaged in many similar litigations over time) that are situated within the judicial process are able to play for the rules and gain traction where one-shotters (those who have occasional recourse to the courts) cannot. The NAACP Legal Defense and Educational Fund Inc. (“LDF”) is a non-profit organization dedicated to assisting African Americans in securing their rights through litigation and other forms of advocacy. The LDF has had longstanding concern with the influence of racial discrimination on crime and has represented a variety of defendents in similar cases. They willingly supported Kimbrough and submitted an Amicus Curiae stating, “these serious questions about the legitimacy of the Guidelines’ crack/powder sentencing disparity have led the African American community, the legal 3 community, and the public at large to view the criminal justice system with skepticism, resentment, and disrespect” (Amicus Brief, LLD). Additionally, the American Civil Liberties Union, created to defend and preserve the individual rights and liberties guaranteed in the Constitution, stepped in to wield their familiarity with the courts as well as their experienced lawyers to advocate on behalf of Kimbrough, a one-shotter. They did so in the form of an Amicus Brief, the release of a detailed report proving the discriminatory nature of the Guidelines, as well as multiple press releases. Through this mobilization, the Supreme Court's judicial power was accelerated, not constrained. Therefore, passivity was not an effective constraint on judicial power due to the persistence of public interest groups.

In the example of the Kimbrough case, we see the presence of significant inter branch dialogue. In response to the Supreme Court’s directives in the Booker ruling that confirmed the “advisory” role of the Sentencing Guidelines, as well as the reaffirmation of this precedent in the Kimbrough case, coupled with the Court’s explicit instruction in 2007 for sentencing courts to reconsider whether “the Guidelines reflect an unsound judgement” (Rita v. U.S.), the U.S. Sentencing Commission formally recommended that the 100-to-1 ratio be rescinded by Congress. A 2007 SCOTUS blog further expounds upon the committee’s efforts to get the attention of Congress as it states, “four times since then, the Commission has asked Congress to narrow the disparity….the Commission said the formula continues to come under universal criticism from representatives of the Judiciary, criminal justice practitioners, academics, and community interest groups, and inaction in this area is of increasing concern to many, including the Commission." This inter branch dialogue and concurrent judiciary efforts between the Sentencing Commission and the Courts, catalyzed the court’s coercive power by eliciting a response from Congress. The ACLU reported that due to the aforementioned judicial efforts, “Senator Joe Biden sponsored a comprehensive bill that would wipe out the 100-to-1 disparity...and restore fairness to the sentencing process”(ACLU 100-to-1 Rule). This Congressional alignment with the sentiments of the judicial branch serves as a clear demonstration of the successful synchronization of judiciary efforts which stimulated triumphant judicial coercion, further proving the nonexistence of both internal and external institutional constraint.

An additional external constraint that falls weak in the context of the Kimbrough case is federalism. As a result of the Supreme Court’s ruling that the Sentencing Guidelines were to be considered as advisory only, a 2005 ACLU press release during Kimbrough’s court hearing reported that federal judges in roughly two dozen district courts across the country issued more lenient sentences than those suggested by the 100-to-1 ratio. This response of federal judges indicates a lack of state-level opposition to the Supreme Court’s ruling, proving that the external constraint of federalism is an unsubstantiated constraint in this case.

Though the Supreme Court leans heavily toward the Dynamic Court View in the context of Kimbrough, in terms of cultural constraint, the Court’s actions seemingly fall within the demands and concerns of both the elite and public opinion. For example, the Amicus Curiae submitted by the NAACP LDF in their argument that the racial disparities produced by application of the Sentencing Guidelines promote disrespect for the law, opines, “there is no doubt, for example, that African Americans are incarcerated for federal crack-related offenses in vastly higher numbers and proportions than whites...52% of reported crack users were white, whites represented only 10.3% of federal convictions for simple crack possession” (Amicus Brief LDF, 5). Similarly, the ACLU expressed in their Amicus Brief that, “the Commision devised a Guideline based on suppositions that have turned out to be false” (Amicus Brief ACLU, 10). A 2005 New York Times opinion piece suggests, “Congress did a serious injustice when it imposed tougher penalties on defendants convicted of selling the crack form of cocaine — the kind most often used in impoverished, minority communities.” An imperative example of an elite opinion is the 2008 Senate Hearing to reform the 100-to-1 crack/powder disparity. During the hearing, Chairmen Biden, one of the authors of the initial 1968 Anti-Drug Abuse Act, opened the meeting stating, “many have argued that this 100-to-1 disparity is arbitrary, unnecessary, and unjust, and I agree...Our intentions were good, but much of our information turned out not to be as good as our intentions. Each of the myths upon which we based the sentencing disparity has in some ways been dispelled or altered” (Senate Hearing, 141). Here we see the deliverance of a Congressional elite opinion that is consistent with the aforementioned Amicus Curiae Briefs and public opinion. Though the former examples indeed constitute public opinions, they are rooted in fact and truth. Congress built racially discriminatory guidelines based on fallacious biases, and therefore had to face a day of reckoning by acknowledging the truth unveiled by the public. Thereby, the Court is culturally constrained in the sense that they were charged to insert themselves into the equation to remedy a legal inaccuracy. In order to do this, they made their decision consistent with public opinion that was grounded in proven implicit discrimination.

Contrary to the aforementioned arguments in alignment with the Dynamic Court View, the Constrained Court View offers two veins of thought to consider as counterarguments. The Justices’ near unanimous, bi-partisan voting coalitions in their 7-2 majority vote largely point to a characteristic of the Constrained Court View. Conservative-leaning Justices Scalia, Roberts, and Kennedy joined liberal-leaning justices Ginsburg, Souter, Breyer and Stevens to ignore partisan lines and acknowledge the inherent flaws in the Sentencing Guidelines. This speaks to the irrelevance of appointment powers under the institutional constraint in this specific case. The bi-partisan, near unanimous voting leaves little room for an argument intended to use the appointment of like minded people to sway the conversation, making this a weak external institutional constraint and ultimately affirming the validity of the court’s overall dynamism throughout this case.

Although in the case of Kimbrough v. The United States, the Supreme Court showed evidence of both Dynamic and Constrained Court views, it ultimately weighs heavily on the side of dynamism. The courts were charged to bear the burden of change. This was done through inter branch coalitions urging Congress to rescind the 100-to-1 ratio, by breaking the barriers of passivity to mobilize on the momentum of public interest groups, and by way of the court’s alignment with the cultural discourse of the public, ultimately influencing elite sentiments. The Kimbrough case is a prime example of the court’s proclivity toward dynamism under conditions of fallacious doctrine in which the Courts must play a vital role in correcting legal improprieties. Thereby presenting a strong answer to the question: under what circumstances do the courts have the most influence over social and legal reform? Though the analysis of this singular case served as the focus of proving the court’s inherent dynamism, Kimbrough is not an isolated incident. Kimbrough v. The United States can be viewed as the paradigmatic symbol for the overall power of the courts. To varying degrees, the courts will always be well-positioned to enact dynamic change whether they actually decide to or not. As shown in this case, though remnants of the Constrained View may be present within various litigious proceedings, the court ultimately rests its authority on the side of dynamism.

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