Yesterday, the SCOTUS handed down another opinion that, in my opinion, blatantly defies common sense. I am not going to repeat my reasoning for feeling entitled to express my opinions in these matters without having a law degree. Please refer to the first paragraph of “Bribe, or Gratuity?” for more on that. This case is about an statute on obstruction of an official proceeding, and its use by prosecutors to charge some of the January 6th insurrections with the crime of obstructing certification of the preceding presidential election results. Below are some excerpts from the majority opinion, available on the Supreme Court website under the title “Fischer v. United States”:

The Sarbanes-Oxley Act of 2002 imposes criminal liability on anyone who corruptly “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.” 18 U. S. C. §1512(c)(1). The next subsection extends that prohibition to anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” §1512(c)(2). Petitioner Joseph Fischer was charged with violating §1512(c)(2) for his conduct on January 6, 2021. On that day, Congress convened in a joint session to certify the votes in the 2020 Presidential election. While they did so, a crowd of supporters of then-President Donald Trump gathered outside the Capitol, and some eventually forced their way into the building, breaking windows and assaulting police. App. 189. This breach of the Capitol delayed the certification of the vote. The criminal complaint alleges that Fischer was among those who invaded the building. Fischer was charged with various crimes for his actions on January 6, including obstructing an official proceeding in violation of §1512(c)(2). He moved to dismiss that charge, arguing that the provision criminalizes only attempts to impair the availability or integrity of evidence. The District Court granted his motion in relevant part. A divided panel of the D. C. Circuit reversed and remanded for further proceedings.

Held: To prove a violation of §1512(c)(2), the Government must establish
that the defendant impaired the availability or integrity for use in an
official proceeding of records, documents, objects, or other things used
in an official proceeding, or attempted to do so.

The opinion is certainly significantly longer than this, with substantial amount of explanation on why the Court took this position. I certainly do not intend to misrepresent the case by just quoting these few paragraphs, and encourage any interested reader to review the entire opinion on their own. But as I had mentioned in the other post linked above, my intention is not to provide a legal critique of this ruling; I am not qualified for that by any stretch of imagination. What I want to highlight is rather how the court system might lose sight of common sense in their endeavor for fining legal explanations for decisions that sometimes seem to have been made before the debates among the Justices, or maybe even before hearing the oral arguments for that matter. I know this statement may sound too harsh; but considering the amount of legal gymnastics in the justifications of these opinions, and clear divergence from the notion of textualism, to which most of the conservative Justices of the court seem to have adhered in the past, I don’t think it is too unreasonable. This skepticism becomes even more justified when one considers that such divergence from textualism often happens in cases in which the result of simple application of the text of the statute will not be inline with the expectations of the more conservative leaning political party. I am not trying to accuse the conservative Justices of the court of siding with the Republican party. It is not implausible for these cases to just be coincidences; or they could be due to some unconscious bias which I don’t think anyone can claim to be immune from. But regardless of all the possibilities that might have led to these rulings, the overlap of the results with the above observations is quite alarming.

Now, back to the common sense arguments; the statute has two subsections:

(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 majority opinion indicates that to understand the meaning of Subsection (2), one must consider the context under which the statute was written, which is the case of massive financial fraud by Enron executives in 2002, and destruction of some documents to impair or otherwise obstruct congress’s investigation into the matter. Granted. That case was about records and documents being altered or destroyed with the intention of impairing an official proceeding. And the lawmakers pretty accurately captured that scenario in Subsection (1) of the statute. But from this point on, the arguments become hand-wavy and even contradictory. On one hand, the argument is that in order to not limit the scope of the statue to just that one case of financial fraud by Enron executives, the lawmakers added Subsection (2). Please, especially, note that Subsection (2) starts with the word “otherwise” and changes the quantifier of the phrase “official proceeding” from “an” to “any.” So it is clear that the intention of the lawmakers was to extend the scope of the statute to scenarios other than that specific case of Enron, and possibly even scenarios that they could not even envision at that time. But then, the majority opinion argues that, still, we should consider Subsection (2) in the context of Subsection (1) and the history and the circumstances under which the statue was written. These two arguments seem quite contradictory to me, hinting that the entire exercise might have been just a reverse engineering attempt to reach at the desired conclusion.

I understand Justice Jackson’s reasoning for joining the conservative majority in this case, and the concern that this very harsh statute, if interpreted widely, may result in unjust prosecution of peaceful protesters. For example, while applying the above statute to some pedestrian scenarios such as a peaceful protest temporarily slowing down the flow of traffic in some corner of a city sounds outright absurd, it is not implausible that a politically motivated prosecution team might attempt to do just that by arguing that a school board meeting was happening in some other part of the city, and that arrival of some of the participants in that board meeting was delayed because of the mentioned slowed down traffic. But I disagree that to avoid absurd applications of the statute such as the above, one should interpret the explicit text of the statue as narrowly as possible. Firstly, one should have some faith and confidence in the legal system that with all the existing processes such as trial by a jury, and the possibility of appealing the lower courts’ rulings all the way up to the Supreme Court, such extreme and absurd cases would eventually be dismissed if not at the very beginning stages. Secondly, if the Court really wanted to address those extreme corner cases, they could provide further guidance on the interpretation and application of the statute, rather than outright denial of the applicability of statute to any case that does not resemble the original Enron case.

Finally, I would like to quote the first few paragraphs from the dissenting opinion written by Justice Barrett and joined by Justices Sotomayor and Kagan, because, in my opinion, it brilliantly explains how straightforward the case in front of the court was, and how the majority opinion defies common sense:

Joseph Fischer allegedly joined a mob of rioters that breached the Capitol on January 6, 2021. At the time, Congress was meeting in a joint session to certify the Electoral College results. The riot forced Congress to suspend the proceeding, delaying it for several hours. The Court does not dispute that Congress’s joint session qualifies as an “official proceeding”; that rioters delayed the proceeding; or even that Fischer’s alleged conduct (which includes trespassing and a physical confrontation with law enforcement) was part of a successful effort to forcibly halt the certification of the election results. Given these premises, the case that Fischer can be tried for “obstructing, influencing, or impeding an official proceeding” seems open and shut. So why does the Court hold otherwise?
Because it simply cannot believe that Congress meant what it said. Section 1512(c)(2) is a very broad provision, and admittedly, events like January 6th were not its target. (Who could blame Congress for that failure of imagination?) But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway. The Court, abandoning that approach, does textual backflips to find some way—any way—to narrow the reach of subsection (c)(2). I respectfully dissent.