Friday, February 27, 2015

Fish, Health Insurance, and Overcriminalization: A Comment on Yates v. United States

by Michael Dorf

Wednesday's SCOTUS decision in Yates v. United States  is interesting for what it may say about King v. Burwell--the challenge to the subsidies on federal exchanges to be argued next week--but also, as I'll explain shortly, because of a point made by Justice Kagan in dissent.

In Yates, the Court held that a fisherman who tossed his illegal catch into the sea to prevent federal authorities from confirming his law violation did not violate a statute forbidding the "destr[uction]" of "a tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States  . . . ." Did the Court say that fish are sentient beings, someones not somethings, and thus not tangible objects? I--along with the other vegan bloggers here at DoL--can only wish.

No, Justice Ginsburg--writing for a plurality of herself, Justice Breyer, Justice Sotomayor, and Chief Justice Roberts--said: "A fish is no doubt an object that is tangible; fish can be seen, caught, and
handled, and a catch, as this case illustrates, is vulnerable to destruction." Nonetheless, the plurality found that Congress did not mean for the statutory provision, which was enacted to combat corporate and financial accounting deception, to apply to cases like Yates. The surrounding linguistic context and purposes motivating the Sarbanes-Oxley Act indicate that for purposes of this statute, "tangible object" is best "read to cover only objects one can use to record or preserve information, not all objects in the physical world."

Concurring in the judgment, Justice Alito reached the same conclusion but largely eschewed reliance on the subjective motives of the Congress that enacted Sarbanes-Oxley, focusing more narrowly on the linguistic context.

What are the implications for King? There the question is how much of the broader linguistic context and background congressional purpose should be deemed relevant to construing the seeming limitation of federal subsidies for "an Exchange established by the State." Under the methodology applied by the plurality in Yates, the answer would appear to be "a lot of it." That's important because the vote of one of the conservatives is needed to get to five, and based on his vote in NFIB v. Sebelius, CJ Roberts appears to be the most likely one.

Nor is the Chief's Yates vote a fluke. He is probably the least textualist, most intentionalist of the current conservatives when it comes to statutory interpretation--as also indicated by his opinion for the Court last year in Bond v. United States (as I discussed here and in a column and other posts linked therein). The government should win in King, unless (as I put it last July) textualism runs amok. Yates confirms that CJ Roberts is barely a textualist at all, much less a textualist run amok.

But if Yates is potentially good news for the government about the Chief's statutory interpretation predilections, might it also be unexpected bad news about Justice Kagan--whose vote had almost surely been counted as nearly certain to find that subsidies are available in King? After all, Justice Kagan wrote the Yates dissent for herself and Justices Scalia, Kennedy, and Thomas. She (and they) found that the plain language prevailed.

The short answer is that there really isn't much of a methological dispute between the plurality (plus Justice Alito) and the dissent in Yates. Justice Kagan writes: "I agree with the plurality (really, who does not?) that context matters in interpreting statutes. We do not 'construe the meaning of statutory terms in a vacuum.'" That might seem like a departure from the textualist philosophy of Justices Scalia and Thomas, but it isn't. Justice Scalia has been saying for decades that textualism isn't literalism or strict constructionism. Everyone thinks context matters.

When all is said and done, then, Yates probably doesn't say much about how any of the Justices in King will vote. I predict that any Justices who conclude that subsidies are not available on federally established exchanges will say that this result comports with the context and purpose of the statute as a whole. They'll be wrong, of course, but they'll think they're right, and they certainly won't say the key snippet of text stands in isolation from the rest of the law.

To my mind, what makes Yates an interesting case is the little lecture that Justice Kagan delivers at the end of the opinion. She says that the plurality/majority are driven to what she regards as an erroneous construction of the statute because they understandably want to limit the ill effects of overcriminalization. She writes:
I tend to think, for the reasons the plurality gives, that §1519 is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code. But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. 
This form of judicial rhetoric is familiar. Indeed, I remarked upon it just last week in my first post on Judge Hanen's opinion enjoining the Obama Administration's deferred action program. The most famous examples appear in constitutional cases--as when Justice Stewart, dissenting in Griswold v. Connecticut, called the state ban on contraception use "an uncommonly silly law." Justice Thomas quoted that language in his dissent in Lawrence v. Texas. In those cases, as in statutory cases like Yates, the protesting judge or Justice reminds the reader that her job is simply to say what the law is--that finding a law constitutional or that it means something unpopular does not imply that the judge or Justice favors the law or its construction on policy grounds.

Familiar though this rhetorical move is, as I said in my first post on Judge Hanen's ruling, it has a doth-protest-too-much ring about it. After all, anybody who is sufficiently sophisticated to read a Supreme Court opinion or other lengthy judicial opinion already knows that judges are supposed to distinguish between their legal judgment and their all-things-considered political judgment. So why the need for the reminder?

The answer, I think, is that the very fact that these cases are contested by other competent jurists belies the claim that "the law made me do it." Did Justice Stewart really think the contraception use ban was silly? If so, why didn't he find a way to agree with Justice Douglas and the Griswold majority? If he really thought the law left him no room for a contrary judgment, wasn't he saying that the Justices who came out the other way were lying? Put differently, "the law made me do it" is only superficially an affirmation of formalism. It is better seen as a formalist expression of the anxieties to which legal realism gives rise.

13 comments:

Samuel Rickless said...

For many years now, the Justices have been confused about what "context" means and how it helps to determine "meaning", and about the difference between ambiguity, vagueness, and context-sensitivity. The Chevron Court, for example, said that "the meaning of a word must be ascertained in the context of achieving particular objectives". But for many moderate textualists, objectives are just not relevant. Yet they too think that the meaning of a word often requires attention to context. So different Justices understand "context" in different ways.

I've commented on this on your blog before, but it's worth saying again: from the point of view of a philosopher of language (or any scholar of linguistic meaning), the enterprise of legal interpretation, as currently practiced by members of the Court (and many others in the legal academy), is a mess. As an example, the Justices are bandying Latin canons (ejusdem generis, noscitur a sociis) about as if they were something more than grossly inadequate rules of thumb, some of them thinking, and some of them denying, that the canons are ways of getting at some sort of meaning that is fixed independently of speakers' intentions.

To get the right answer in cases like Yates and King, we absolutely need input from the people who know a lot about meaning, namely linguists and philosophers of language.

Greg said...

While I would agree that in many other contexts "the law made me do it" may be used to try and hide from and unpopular and politically motivated ruling, I don't think that is the case with Justice Kagan's dissent in Yates v. United States.

Different judges will be willing to bend the law more or less depending on a variety of factors, such as the actual text, the importance of the particular case, and congressional intent. Justices are more willing to bend the law farther if the case is considered important or (for some) if congressional intent gives a clear indication of what the right answer is.

I think I would agree with Justice Kagan that the law in Yates really is so broad as to include ANY tangible object. While the majority was willing to bend the law far enough to restrict it to only data recording devices, that really isn't what it says, and it's reasonable to think that this very generic provision was generic on purpose, it just ended up being a little too generic. Her argument framing this law in the larger over-criminalization context is an argument that it is, in the grand scheme of things, and unimportant case.

It's also important to point out that when a Justice honestly argues that the law ties their hands, they aren't necessarily saying that they think the other side is lying, just that they aren't willing to bend the law as far as other Justices or Judges might be willing to bend it.

Joe said...

I think Mr. Rickless' insights as to linguistics helpful & it would be something useful in textual interpretation. I believe, e.g., such an approach was subject to at least one amicus brief in the Heller gun case.

Yates to me is a much more close case (the justices, split in a way not typically ideological, in effect decided it 4-1-4) in this respect than King. But, the "true meaning" of text is determined in various ways. Outside analysis can help here, including to show that some things are not as "common sense" as some think.

This "common sense" view at times even leads some to wrongly accuse one or the other side of special bias or in effect making stuff up. Since clearly they KNOW their alleged view is non-nonsensical.

I think King is a clear case of this actually happening while some other things (including constitutional interpretation generally) is somewhat more complicated.

tjchiang said...

99% of the time I would agree with your bottom line, that a judge saying "the law made me do it" is not entirely sincere about that belief and that, while the protesting judge might find the policy at hand disagreeable or silly, all things considered, he or she does not dislike it that much.

Yet I find it hard to credit this in the specific context of Justice Kagan in Yates, or, probably more famously, Justice Scalia in Texas v. Johnson. One could say that judges are still insincere and simply vote against type once in a while in order to grandstand later (Justice Scalia has been milking his vote in Johnson for this purpose for 25 years), but that requires a rather lot of uncharitable inference.

Shag from Brookline said...

Joe is most likely referring to "Brief for Professors of Linguistics and English ... in Support of Petitioners" in District of Columbia v. Heller." The issue in Heller was constitutional interpretation. The issue in Yates, as well as in King, involve statutory interpretation. There are distinctions as the latter involve a code that are relatively current whereas Heller involved the Constitution timeframes of 1787-91 and 1866-68. Some Justices engage in "law office" linguistics as well as in "law office" history.

Joe said...

Statutory and constitutional interpretation are different in various ways. However, I do think a "scientific" approach here with an assist from such experts might be useful in the statutory context too. Some statutes are pretty old too.

As to tjchiang, judges like others are influenced by various things & sometimes finds "restraints" have a somewhat convenient tendency to work the way one likes.

And, this includes a few surprising cases (e.g., the flag burning case furthers the anti-PC tendencies of Scalia; Scalia can rule in a way that helps criminal defendants, but often because it matches his preferred clear line rules ... some constitutional text however is more opaque).

But, especially when the matter doesn't really mean much, and sometimes when it does, judges show they are principled too.

jowdjbrown said...

Yet African Americans, just like people of all racial/ethnic backgrounds, experience mental illness.Example

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