“The question here is whether crack offenders who did not trigger a mandatory minimum qualify,” Thomas wrote. “They do not.”
That conclusion seemed clear at oral argument in the case last month, although some justices questioned whether leaving out low-level offenders was Congress’s intent.
Justice Sonia Sotomayor agreed with the outcome in Monday’s decision. But she wrote separately to chastise Thomas and the majority for including an “unnecessary, incomplete, and sanitized history” of what led Congress to impose far greater penalties for possession of crack cocaine than powder cocaine.
“The full history is far less benign,” Sotomayor wrote, referring to the fact that Black defendants were far more likely be convicted of crack crimes, while powder cocaine defendants were more likely to be White.
She also noted some members of Congress involved in passing the First Step Act had asked the court to conclude that it covered small-amount convictions.
“Unfortunately, the text will not bear that reading,” she wrote. “Fortunately, Congress has numerous tools to right this injustice.”
A law Congress passed in 2010 mitigated the disparities between crack and powder cocaine. It increased from 50 to 280 grams the amount of crack that would trigger the most severe penalties. A second tier, with lesser possible sentences, was increased from five grams to 28 grams. But the section of the law concerning smaller amounts was not changed.
The First Step Act allowed those convicted under the old regime to have their sentences reduced. Tarahrick Terry, who received a nearly 16-year sentence for possessing less than five grams of crack, was among those who sought a sentence reduction.
But lower courts said the changes Congress made to the law did not affect him, and the Supreme Court agreed.
The case had an unusual history at the court. Even though Trump praised the First Step Act as a long-sought victory for minority communities, his Justice Department interpreted the law to mean those like Terry did not benefit from it.
After President Biden was elected, the Justice Department switched its view and said Congress meant for it to allow all those convicted under the old crack regime to seek reduced sentences. That caused the Supreme Court to delay hearing the case and to appoint a lawyer to defend the opinion of the appeals court.
Thomas said Terry and the government “offer a sleight of hand” to obscure the clear text of the law.
The liberal Sotomayor, the court’s only Latina, took issue with part of the opinion by the conservative Thomas, the court’s only African American.
In recounting the history of Congress’s imposition of tough penalties on crack, Thomas said Black leaders at the time supported the legislation.
“First, crack was fueling crime against residents in inner cities, who were predominantly black,” Thomas wrote. And second, “there were concerns that prosecutors were not taking these kinds of crimes seriously enough because the victims were disproportionately black.”
Sotomayor said the court’s majority opinion barely mentions the “real-world impact” of a regime that punished possession of crack cocaine far more harshly than powder cocaine.
She said the Congressional Black Caucus united to try to change the ratio.
“Bills to mitigate the disparity were introduced almost every year from 1993 to 2009,” Sotomayor wrote. “Yet Congress did nothing until 2010.”
The case is Terry v. United States.
Justices delay decision on whether to take Harvard case
The court asked the Biden administration for its views on whether to review whether Harvard’s consideration of race to build a diverse student body discriminates against Asian Americans.
The Trump administration had supported Harvard’s challengers in lower court, but it is likely the new administration will side with the university. Soon after Biden took office, the Justice Department moved to drop a similar discrimination lawsuit filed against Yale, which was brought by the Trump administration.
The court’s request on the Harvard case means the justices probably would not consider whether to accept it again until the fall. But it could mean only that acceptance of the case is delayed, and it could still be heard in the term that begins in October.
Although lower courts had ruled in favor of Harvard, the lawsuit was built to get the issue before a Supreme Court more conservative than the one five years ago that upheld the limited use of race in student admissions by the University of Texas.
In that case, the court ruled 4 to 3 that college and universities may use race only in a way narrowly tailed to promote diversity. But two justices in the majority — Anthony M. Kennedy and Ruth Bader Ginsburg — are no longer on the court. And three justices nominated by Trump have proved themselves to be more conservative.
The three dissenters in the Texas case remain in place — Chief Justice John G. Roberts Jr. and Justices Thomas and Samuel A. Alito Jr. While Roberts often plays a moderating role on the court and is reluctant to overturn the court’s precedents, he has been a steadfast opponent of affirmative action.
The petition filed by Students for Fair Admissions made note of that in the first sentence, quoting an opinion written by Roberts during his first term on the court in 2006: “It is a sordid business, this divvying us up by race.”
The group was formed by Edward Blum, an opponent of affirmative action who has been involved in previous lawsuits targeting affirmative action. For the first time, it features Asian Americans as plaintiffs, rather than White students who say they were turned away from the colleges of their choice because the spots were given to minorities.
Their petition said the court’s 2003 decision allowing the use of race as a factor in making admissions has been abused, and Harvard has exploited it to reach its desired balance of students.
“Harvard’s mistreatment of Asian-American applicants is appalling,” the petition says. “Harvard penalizes them because, according to its admissions office, they lack leadership and confidence and are less likable and kind . . . That Harvard engages in racial balancing and ignores race-neutral alternatives also proves that Harvard does not use race as a last resort.”
A federal district judge and a panel of the U.S. Court of Appeals for the 1st Circuit disagreed, and ruled for Harvard across the board.
“The issue before us is whether Harvard’s limited use of race in its admissions process in order to achieve diversity in the period in question is consistent with the requirements of Supreme Court precedent,” Judge Sandra Lynch wrote in upholding a district judge’s ruling after a trial. “There was no error.”
Harvard told the Supreme Court that it should not take the case. The Students for Fair Admissions petition “recycles allegations both courts rejected and offers a thoroughly distorted presentation of the record,” the university said in its response.
“Unable to seriously challenge the rejection of its claims under existing law, SFFA asks the court to overrule more than 40 years of decisions regarding the limited consideration of race in university admissions,” Harvard said. “Universities across the country have followed this precedent in structuring their admissions processes.”
In its most recent freshman class, the university said, 24.5 percent identified as Asian American, 14.8 percent as African American or Black, 12.7 percent as Latinx and 1.8 percent as Native American.
Nick Anderson contributed to this report.