Justice Sonia Sotomayor took a page from Ruth Bader Ginsburg’s playbook on Monday when she argued that Congress could counteract a Supreme Court ruling.
The court’s unanimous decision held that the text of the First Step Act, a criminal justice overhaul enacted in 2018, does not allow certain inmates to have their sentences retroactively lowered as a result of the new guidelines.
Sotomayor agreed with the judgment based on the wording of the statute but wrote separately to say Congress intended for it to provide that benefit — and can still make that happen.
Indeed, the bipartisan lead sponsors of the First Step Act have urged this Court to hold that the Act ‘makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act,’ Sotomayor wrote, citing a brief by Sen. Dick Durbin, D-Ill., a lead author of the law. Unfortunately, the text will not bear that reading. Fortunately, Congress has numerous tools to right this injustice.
Durbin, the No. 2 Democratic senator and chairman of the Judiciary Committee, told NBC News on Monday afternoon that the Senate would work to fix the law. He said he was discussing it with Sen. Chuck Grassley, R-Iowa, the panel’s ranking member.
“I hope there will be“ bipartisan support for that, Durbin said.
In a way, Sotomayor’s suggestion resemble a tactic used by Ginsburg, who wrote in a 2007 dissenting opinion that Congress could counteract a Supreme Court ruling by clarifying that women have more room to sue for pay discrimination.
Once again, the ball is in Congress’ court, she wrote, adding that the Legislature may act to correct what she argued was a parsimonious reading of the law by the court.
Two years later, Congress passed the Lilly Ledbetter Fair Pay Act and President Barack Obama signed it into law, effectively reversing that court ruling.