The Supreme Court on Friday narrowed its interpretation of the federal criminal law under which many of the Jan. 6 rioters were charged, throwing hundreds of such cases into at least partial uncertainty. It was another 6-3 decision.
While the case was deeply political, it was another case where the outcome of the vote was not entirely ideological. The majority opinion was written by Chief Justice John Roberts and joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson, the latter of whom wrote a concurring opinion urging the government to keep criminal laws constrained to their actual Text. (Judge Amy Coney Barrett wrote the dissent, joined by Justices Sonia Sotomayor and Elena Kagan.)
as reasonJacob Sullum outlines that the Supreme Court decision centers on former Pennsylvania State Trooper Joseph Fischer, who was charged with multiple counts related to his conduct during the Capitol riots offense. This lawless behavior included, among other things, that he “forcibly assaulted a federal officer, entered and remained in a restricted building, and engaged in disorderly and disruptive conduct at the Capitol,” according to the government.
But prosecutors filed another charge under the Sarbanes-Oxley Act of 2002, which would “change[ing]destroy[ing]incomplete[ing]or hide[ing] records, documents or other objects, or attempts[ing] This is done with the purpose of compromising the integrity or availability of the item for use in the official program,” or, subject to the following, “otherwise hampering[ing]Influence[ing]or hinder[ing] any formal proceedings.
Fisher challenged the charge, arguing that the written statute required that the alleged obstruction relate to damage to records, documents or objects, but that did not apply to him. The federal judge who originally evaluated Fisher’s petition sided with him. A divided U.S. Court of Appeals for the District of Columbia Circuit overturned the decision; the Supreme Court overturned the decision.
On paper, it’s not surprising that Justice Jackson sided with Fisher. She is the only former public defender on the current court; broadly speaking, in the judicial branch, you are more likely to find former prosecutors on the bench. So she stands to understand the negative consequences of the government getting creative with criminal statutes, as prosecutors sometimes do.
but it yes This may come as a surprise to many onlookers, for at least a few reasons. For one, the prevailing narrative seems to be that the Supreme Court is more radical, extreme, and polarizing than ever before. As I wrote earlier this week, this is not reflected in the data at all: the early part of the term was defined by the number of unanimous decisions historically, whereas today 6-3 decisions consisting of heterogeneous groups are actually common . It rarely makes the news.
Most importantly, of course, Joseph Fisher was the criminal defendant in one of the most politically charged cases of the century. But Jackson’s concurrence is a reminder that the application of criminal law should not be affected by personal animus toward any particular defendant.
“Our commitment to equal justice and the rule of law requires that courts faithfully apply written criminal laws, even in times of national crisis,” she wrote. “We recognize the intuitive truth that the rule is intended to prohibit certain categories of conduct. –because we recognize that the drafters of the rule had included these specific examples, albeit implicitly for some reason. We understand that the rule was adopted with clear intent as to its scope, given the examples previously listed.
To support her argument, Jackson recounted the history of the regulation, which was enacted in response to revelations that Arthur Andersen LLP, auditors for disgraced energy company Enron, burned potentially incriminating documents. “There is no indication that Congress intended to enact a comprehensive, general obstruction of justice statute,” Jackson concluded.
In response, Attorney General Merrick Garland said in a statement that he was “disappointed with today’s decision, which limits an important federal statute that the Department of Justice was trying to use to ensure maximum accountability for this attack.” Those responsible face appropriate consequences. Fortunately for him, he remains free to prosecute those who violate laws enacted by Congress, which is not an unfair restriction.
