The Ejusdem is Loose -- SCOTUS Insurrectionist Case Edition

Here's the key portion of the statutory provision (18 U.S.C. § 1512) that was at issue in yesterday's oral argument in Fischer v. United States:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

The main argument offered by the lawyer for Fischer -- who is charged under § 1512(c)(2) with obstructing the counting of Electoral votes on January 6, 2021 by participating in the violent attack on the Capitol -- is that while his client's alleged conduct falls within the plain language of (c)(2) standing alone (because he allegedly "obstruct[ed]" an "official proceeding,") the language of (c)(2) takes its meaning from its location after (c)(1), which refers only to tampering with evidence, and thus, because (c)(2) begins with the word "otherwise," the only kinds of obstruction it covers must also involve evidence tampering of one sort or another. And because the January 6th rioters aimed at obstructing the counting of Electoral votes by means that did not involve evidence, the argument goes, the statute doesn't apply.

Fischer's lawyer made other contextual arguments. He was assisted by a parade of hypothetical examples (chiefly supplied by Justices Alito and Gorsuch) that aimed to show the ostensible overbreadth of the statute if it is construed to cover obstruction by means other than blocking evidence. But the core move and the one most likely to win the case for him relied on the juxtaposition of (c)(1) with its list of specifics that all involve evidence with (c)(2) and its introduction via the word "otherwise." In other words, the core argument relies on what lawyers call the ejusdem generis (of the same class) canon.

To my surprise, the ejusdem generis argument appealed to a number of Justices. Here I'll offer some reasons why the argument should have been weak, which partly echo what Solicitor General Prelogar (in another outstanding performance at the podium) said. I'll then close with an observation about the partisan nature of this Court. 

(1) Ejusdem generis, even under the best of circumstances, invokes an interpretive methodology that the SCOTUS conservatives operating in textualist mode typically eschew.  Let's take a variation on a classic example. Suppose an ordinance forbids "cars, trucks, vans, motorcycles, and other vehicles" from a city park. Does "other vehicles" include bicycles? Maybe, but one could make an ejusdem generis argument that because all of the expressly articulated forbidden vehicles are motorized, the term "other vehicles" does not include bicycles unless they are e-bikes.

One would want to know something about the ordinance's overall purpose. If it aims at quiet so that people using the park can have some respite, then bicycles might be permitted even though in ordinary parlance they are "vehicles." So might electric cars, which are motorized but virtually silent--although an electric car is a "car," so it falls within the express prohibition without recourse to the catchall "other vehicles." Even if one had good reason to believe that the ordinance aimed only at quiet, one still would likely conclude that it covers electric cars because, as Justice Scalia wrote for the Court in Oncale v. Sundowner Offshore Services, Inc., "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." But where the law is unclear--as it is with respect to bicycles but not cars of any sort--resort to those concerns can be informative. Thus, assuming the law aimed solely at quiet, a respectable ejusdem generis argument could be made that it doesn't cover bicycles, not even e-bikes, which are motorized but no louder than purely mechanical bicycles.

What if one has reason to think that the ordinance aims at safety (either alone or in addition to aiming at quiet)? Then one would want to know whether the risk of harm from collisions between pedestrians and bicycles is sufficiently comparable to the risk posed by collisions with cars, trucks, vans, and motorcycles to deem bicycles of the same class as the expressly enumerated vehicles. One could imagine that here one might distinguish purely mechanical bikes from e-bikes on the ground that the latter typically move faster. Or perhaps not. On a downhill on my purely mechanical road bike (which is an awesome custom titanium model from Firefly, but that's not important right now), I hit peak speeds of a little over 40 mph, which could cause serious injury were I to collide with a pedestrian.

It should be immediately apparent that use of the ejusdem generis canon does not magically create clarity. Indeed, it should be apparent that the canon plunges jurists into the kinds of inquiries more typically associated with intentionalism and purposivism than with textualism. Yes, textualists say that they can deploy ejusdem generis and other canons consistent with their methodology. During yesterday's oral argument, Justice Kavanaugh referenced Scalia and Garner's book Reading Law, which expounds ejusdem generis and other canons. Indeed, just last week, Chief Justice Roberts handed down a unanimous opinion for the Court in which he invoked ejusdem generis. And just this morning, a majority opinion by Justice Kagan discussed a proposed invocation of the canon. However, the fact that self-described textualists say or even think that deployment of some canon is consistent with their overall methodological commitments doesn't necessarily make it so.

(2) In any event, even if one thought that ejusdem generis can be deployed advantageously in a typical case, the statute at issue in Fischer is very different from the kind typically at issue. Most obviously, the ostensible catchall is in its own separately numbered sub-section, which also has different objects--namely, the official proceeding itself in (c)(2), as opposed to the evidence that a defendant destroys or otherwise impairs with the aim of impairing its availability for an official proceeding.

(3) Meanwhile, there is one way in which the use of ejusdem generis in Fischer is downright perverse.

Suppose a law forbids the carrying of "handguns, rifles, shotguns, or other weapons" into a government building. We could argue about whether a small pocket knife is a "weapon" within the law's meaning. But it would be odd to invoke ejusdem generis to argue that, say, a bomb is not a weapon within the meaning of the law on the ground that handguns, rifles, and shotguns are all kinds of guns but a bomb is not. It isn't, but it's more dangerous than the enumerated items. At least in a criminal case, use of ejusdem generis to exclude conduct from coverage under a law bears some relation to the rule of lenity, under which people should not be made to risk imprisonment based on a surprising and harsh interpretation of a law.

Fischer is charged with the equivalent of bringing a bomb into a government building. Yes, tampering with evidence is bad. But attempting to violently assist an insurrectionist President in ending the Republic as we know it is far worse. There is no unfairness or surprise in charging Fischer and other January 6 defendants with obstructing an official proceeding. It's not a defense to a charge of obstructing Congress to say that one was also trying to assassinate some members of Congress.

To be sure, the Justices who seemed most sympathetic to Fischer's argument said they were concerned about other applications of (c)(2) in the event that they were to endorse the government's understanding of it. The SG pushed back by contending that to "obstruct[], influence[], or impede[] an[] official proceeding" entails imposing a substantial obstacle that is directed at a particular official proceeding, and that these qualifiers would avoid the overly broad interpretation that the questioners asked about. As a textual matter, that's certainly plausible, so that if the Court thought that the plain language encompasses Fischer's alleged conduct but that it shouldn't be construed to cover less serious conduct, the Justice assigned the opinion could simply adopt the SG's reading and thereby make it the law.

(4) In a very different case involving the same statute, one could see the Justices dividing on ideological and methodological grounds. The conservatives' textualist impulses and general tough-on-crime attitude (except with respect to gun crimes) would lead them to rule against Fischer. The methodological point is somewhat murky with respect to the liberals, each of whom has sometimes preached or practiced textualism, but their version of textualism still seems closer to purposivism than the version that core textualists propound. Thus, the somewhat more purposivist liberals with greater solicitude for criminal defendants should be more sympathetic to Fischer's arguments than the conservatives are. 

In fact, however, during yesterday's oral argument we witnessed the opposite. With the possible exception of Justice Barrett, the conservatives were skeptical of what they call a broad reading of a criminal law and apparently want to narrow it by deploying a canon that sounds in purposivism, while the liberals seemed to take the opposite view. How to explain that apparent contradiction? The answer is obvious. Fischer is a January 6 case with implications for the pending D.C. case against former President Trump.

In short, the Justices' partisan druthers, not their methodological or even ideological commitments, appear to be driving their dispositions towards the case. Is that surprising? More than two decades after the shock of Bush v. Gore, it shouldn't be--but somehow, even with what should be extraordinarily low expectations, this Court manages to disappoint. I hope to be proven wrong when the Court hands down a ruling in Fischer, but I'm not holding my breath.