Change of Direction

14 years ago in Smith v. US, the Supreme Court ruled that a “criminal who trades his firearm for drugs ‘uses’ it ‘during and in relation to . . . [a] drug trafficking crime’ within the meaning of” the federal firearm sentence enhancement statute.

Today they ruled that a transaction which goes the other way — one in which a person trades his drugs for a gun — does not qualify as ‘using’ a firearm ‘during and in relation to … [a] drug trafficking crime.’

The answer given to the specific question seems a fairly obvious result (the unanimous Court certainly thought so). The case is interesting mainly in that Ginsburg — who concurred in the judgment but did not join Justice Souter’s opinion — was unable to persuade the Court to overrule Smith “and thereby render [the Court’s] precedent both coherent and consistent with normal usage.” Not even Scalia, whose dissent in Smith she cites, joined her in urging the Court to overrule Smith.

Thus, once again, we see the Roberts Court’s tendency toward stare decisis, consensus, and incremental change even if it means fairly narrow rulings without much precedential value outside the facts of the specific case. It would have been a fairly easy (and non-controversial) to overrule Smith here, but they chose not to. This strongly suggests that this Court will be even more circumspect about disturbing other more substantive precedents.

FILED UNDER: Law and the Courts, Supreme Court,
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.


  1. Simon says:

    Stare decisis is at its peak in statutory construction, precisely for the reason that the court’s opinion notes – if the court gets it “wrong” (so to speak) Congress can respond by changing the law. Moreover, this didn’t require the court to overrule Smith (even those who would stretch language to say that one “uses” a firearm when trading it for drugs will concede that it would be preposterous to say that one “uses” a firearm when receiving it in payment for drugs, presumably hence Justice Thomas’ presense in both the Smith and Watson majorities), so even if the court said it would do so, it’d be dicta.

    I would think the more noteworthy point here is that in such a case, Justice Ginsburg is willing to call for a relatively recent statutory precedent to be overruled in a case that doesn’t strictly require doing so. This despite her willingness to join in the bleating about stare decisis last term from the court’s liberal bloc! Any time Ginsburg says “stare decisis” critics can destroy her credibility by pointing to her concurrence here and say “if you wrote that, there, tell us how you can ever appeal to stare decisis.”

  2. McGehee says:

    Dodd, I’d read OTB more often if you were posting more often…