Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, November 10, 2014

Another post on Yates v. United States

In light of press reports from last week's oral arguments in Yates v. United States, my prediction that petitioner would lose unanimously seems unsustainable. Be that as it may, I remain puzzled about the legal grounds on which various Justices on the Supreme Court might vote to reverse petitioner's conviction.

As briefed, Yates is largely a statutory interpretation case: Does the criminal statutory prohibition of intentional destruction of evidence to impede a federal investigation apply to the disposal of the best evidence of the underlying civil violation? The most straightforward way to answer no, I think, is through Bond-style statutory interpretation. This is an approach to statutory interpretation that places very heavy reliance on statutory context in interpreting the text. Here that context is the surrounding language, the nature of the specific problems that motivated Congress to act, and an already bloated federal criminal code. Reliance on context in some form or another is always important for interpretation, of course. The weight of that context relative to the text, and what counts as relevant context, though, often divides interpreters, as it did in Bond. Concurring in the judgment in that case, Justice Scalia viewed the majority's statutory interpretation to be more in the nature of MacGyver-style interpretation. And that is my impression of petitioner's interpretation in Yates: "As sweeping and unsettling as the [evidence destruction statute] may be, it is clear beyond doubt that it covers what [Yates] did; and [the Supreme Court] has no authority to amend it." 

There was some suggestion in the questioning at oral argument that constitutional concerns about fair notice were motivating some of the Justices' skepticism about the broad reach of the evidence-destruction statute at issue. This picked up on petitioner's arguments about constitutional avoidance and the rule of lenity. Standing alone, such arguments might not be enough for the Court as currently constituted. But these were only the last of petitioner's arguments in his opening brief. The lead arguments were about statutory context and the application of noscitur a sociis and ejusdem generis. Based on oral argument, these arguments apparently have more traction with the Court than I previously appreciated. In any event, those looking for new arguments in Yates will have read up to this point in vain. But this is where it ends. We will see soon enough if the government's arguments were good enough. In the meantime, the criminal law professors' arguments are also looking to be stronger than I believed they would be. If those arguments end up being adopted in an opinion for the Court (as they were by various Justices at oral argument), kudos to Rick Garnett and Greg Sisk for being on the right side of interpretive history on this intra-MOJ split.


Walsh, Kevin | Permalink