Yates v. United States: Supreme Court Throws Back Fishy Conviction (and What It Might Mean for King v. Burwell)

Yesterday the Supreme Court overturned a conviction for a defendant whose crime was destruction of evidence: tossing out three undersized fish that a fisheries officer had instructed him to keep for investigation. The plurality opinion may—but probably doesn’t—hint at how certain justices are thinking about next week’s argument in King v. Burwell.

It was an unusual 4-1-4 lineup. Justice Ginsburg wrote for the plurality (including the Chief and Justices Breyer and Sotomayor), Justice Alito concurred in the result only, and Justices Scalia, Kennedy, Thomas, and Kagan dissented. Justice Ginsburg’s plurality opinion concluded that the “tangible object” charged under 18 U.S.C. § 1519 “is better read to cover only objects one can use to record or preserve information, not all objects in the physical world,” By and large, the plurality opinion was a fairly straightforward exercise in statutory interpretation. After a bit of throat-clearing, the opinion noted the text, reviewed legislative history and the structure of the statute, suggested oddities with the government’s interpretation, and ultimately cited the rule of lenity. Justice Alito wrote separately to concur in the judgment, thus limiting the majority holding to application of general principles of statutory interpretation.

The dissent had an unusual lineup: Justice Kagan writing for Justices Scalia, Kennedy, and Thomas. Justice Kagan’s opinion pointed out the confusion created by the majority’s conclusion and the discrepancy with what Congress actually passed. (Interestingly enough, the legislative history that Justice Kagan recited focused on textual interpretation of the law, not its general purpose or intent.)

As a case about statutory interpretation, it was inevitable that it would raise comparisons with next week’s King v. Burwell, the case about Obamacare tax subsidies, which has oral argument scheduled for Wednesday. Even without a majority opinion in this case, at least one commentator cast a wide net for insight into how Yates indicates that Chief Justice Roberts and others might be thinking about King. I don’t think Yates does much in this regard, and here’s why.

Most of the plurality’s statements about statutory interpretation are widely acceptable principles that only the most unhinged purposivist would object to, such as the canon on surplusage, contextual reading, noscitur a sociis, ejusdem generis, etc. The justices probably differ on how the principles are applied, but there’s not much disagreement in principle.

Sure, the reader could dig out find a few quotes from the opinion to cite in favor of the government’s position in King: “Ordinarily, a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.” But who disagrees with that? Thus, Justice Kagan’s observation in dissent that “I agree with the plurality (really, who does not?) that context matters in interpreting statutes.” If you really think Justice Scalia has a problem with the proposition that context matters in statutory interpretation, you need to study textualism a bit more.

Near the end, too, the plurality said: “It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial record-keeping.” This argument tracks Justice Scalia’s much-quoted comment in Whitman v. American Trucking (2001) that Congress doesn’t “hide elephants in mouseholes.” But in the context of King, the elephants-in-mouseholes argument doesn’t carry much weight because the limitation of tax subsidies to exchanges “established by the State” resides in the very same section that authorized and defined the tax subsidies in the first place. Where else would Congress put a definitional limitation on subsidies?

Or also: “We have several times affirmed that identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute.” The plurality then cites several supporting cases. But again, this was a general statement of interpretive doctrine. Justice Ginsburg was making a point that Justice Scalia made in Reading Law about the “presumption of consistent usage”: “A word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.” As Justice Scalia explained in that book, the presumption of consistent usage is “particularly defeasible by context.”

And that last canon brings up another problem for those who are rooting for the government in King: if anything, the plurality opinion indicates that four justices may be willing to reject one of the government’s statutory interpretation arguments. If you recall, the government’s brief argues that Obamacare uses “established by the State” as a “term of art” that has the same meaning wherever it appears in the statute and relies explicitly on the presumption of consistent usage (p. 27). That argument has always seemed strained to me, and the Yates plurality’s eagerness to explain the qualification to the presumption of consistent usage reinforces my skepticism. Regardless, the Court’s inconsistency with applying stare decisis makes it unlikely that Yates tells us anything particularly noteworthy about King.

Anyway, Yates does vindicate critics who have been trying to convince the Supreme Court to take seriously the problem of rapidly-expanding federal criminal law. If this case is any indication, the Supreme Court is finally taking up the challenge of limiting criminal liability in cases where there’s a big mismatch between the gravity of the offense and the consequences of prosecution. Congress should take up the mantle of reforming federal criminal law so the Supreme Court doesn’t have to.