Let the decision stand – or not

We all know just how important the doctrine of stare decisis is to the Supreme Court. So what’s an attorney to do when asked by the Court during oral argument if a prior decision – one that is certainly problematic for the attorney’s case – should be overruled?

For Karl L. Koch, attorney for the petitioner in Watson v. U.S., the answer is: change your mind.

Koch argued that his client – who exchanged OxyContin in order to get a gun – should not have had 5 years added to his drug trafficking sentence under a statute that boosts the penalty if the offender “uses or carries” a gun.

The pesky precedential case is Smith v. U.S., in which the court held that the reverse situation – giving a drug seller a gun in exchange for drugs – is “use” of a gun and therefore warrants the higher sentence.

During Tuesday’s oral argument, Justice Ruth Bader Ginsburg first brought up whether the petitioner sought to overturn Smith.

“I don’t remember whether you ask in your brief as an alternative argument for the overruling of Smith,” Ginsburg said to Koch.

“ I did not raise that in the briefs, no, ma’am,” Koch answered.

Later, Justice Stephen Breyer put the question to Koch more pointedly.

“Do you want to us overturn Smith?” Breyer asked.  “Are you asking that? Because I could understand it more easily if you said, look, both sides of the transaction should be treated alike, but they should both be outside the word ‘use.’”

Koch, likely knowing that the Court is loathe to wipe out its prior decisions, erred on the side of caution. “I do not believe it’s necessary for this Court to overrule Smith in order to rule for the petitioner here,” Koch said.

Ginsburg followed up. “And in answer to my question, you said you were not urging the overruling of Smith?” she asked.

“That’s correct,” Mr. Koch said.

It seemed the matter was settled – that is until Mr. Koch stood up to make rebuttal comments at the end of the hour – and indicated that he’d had a change of heart.

“As I indicated before I don’t think that it’s necessary to overrule Smith to rule for the petitioner,” he started, “but if consistency on both sides of the transaction is desired, and certainly something has to go, I would suggest it ought to be Smith.”

More on Watson v. U.S. can be found here, and even more in the next issue of Lawyers USA.

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