Mother Jones: Does “And” Really Mean “And”? Not Always, the Supreme Court Rules.

A look at how the Supreme Court can haggle over words.

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Just when you thought “and” meant “and,” and “or” meant “or,” along comes the Supreme Court to deliver the unsettling news: Your grammar is all wrong.

This historic toppling of words’ ordinary meaning comes from a recent ruling in which the court dashed the hopes of thousands of criminal defendants seeking reduced prison time. A majority of the justices found that the word “and”—at least as it’s written in a key section of a landmark law aimed at reducing mass incarceration—doesn’t mean what “and” usually means.

For anyone who isn’t a legal scholar, a copy editor, or an obsessive grammar nut, the debate here can be tough to follow. At issue was whether “and” in a provision of the Trump-era First Step Act was intentionally or mistakenly written to conjoin requirements for eligibility. For thousands of defendants, relief from mandatory minimum sentencing rested on whether “and” should be read as combining the set of conditions after the words “does not have.” In the puzzling provision, a defendant is eligible for relief if:

the defendant does not have—
(A) more than 4 criminal history points…;
(B) a prior 3-point offense…; and
(C) a prior 2-point violent offense…

(“Points” refers to the system of sentencing based on points assigned to various types of crimes.)

As I reported last year, lower courts were sharply divided on the vital question of whether “and” bundles the conditions—as in, you don’t have (A), don’t have (B), and don’t have (C)—which would mean a defendant who lacked any one of these conditions would be eligible for relief. The alternative reading, advocated by the Justice Department, holds that “and” really means “or”—that a defendant who met even one of the conditions would not be eligible for relief. In its 6–3 decision, the court sided with the DOJ’s interpretation, dramatically narrowing the scope of the law. The implications are profound: More than 10,000 people imprisoned since the law took effect will lose the chance to reduce their sentences, and thousands more will face stiffer sentencing in the future.

So how did the justices reach this conclusion?

Taken at face value, the petitioner’s reading seemed obvious: He was eligible for relief because he didn’t meet all three conditions bundled by “and.” But the court disagreed, saying that any of the conditions satisfies the “does not” test because the law’s calculations would be incoherent otherwise. Someone with both the 3-point offense from (B) and the 2-point offense from (C) would have at least 5 points and automatically exceed the 4 points in (A), making (A) extraneous. To give (A) meaning, the court said “and” has to function as “or.” The ordinary meaning of “and” would so disjoint the law mathematically that the court ruled from context, not just text.

The court also found unpersuasive the ordinary-meaning argument that “and” is always conjunctive after a negative, like “Don’t drink and drive” means you could maybe do either but can’t do both. Writing for the majority, Justice Elena Kagan brushed that example aside. “For every negative statement [the petitioner] offers up, another cuts the opposite way,” she noted, citing a counterexample: “If someone says ‘I’m not free on Saturday and Sunday’…he most likely means ‘I’m not free on Saturday and I’m not free on Sunday’; he is not saying that although he cannot go away for a full weekend, he can make plans on one of those days.”