« Remember, Remember . . . | Main | The "Anti-Foreign Law" Craze--Bills, Amendments and Decisions »

Thursday, November 06, 2014

Yates, the Top Ten Oral Argument Moments

Last week, I wrote that Yates v. United States was a weird case. The Court has now held oral argument in Yates, and the resulting spectacle was hilarious, insightful, and sometimes surreal.

Here are my 10 favorite oral argument moments from Yates. (There were more to choose from!)

1. Justice Scalia gives Justice Kagan a brief Latin lesson.

JUSTICE KAGAN: ... And to me, it seems like other object is, if anything, a more classic case of that canon that I can't pronounce the name of, ejusdem whatever.



JUSTICE KAGAN: Good. That's what I count on my colleague for.


2. Justice Kagan points out that over-criminalization is nothing new, in a "Congress will be Congress" kind of way.

JUSTICE KAGAN: You know, it seems as though this is -- Congress gives very strict penalties to lots of minor things, and -- but that's, you know, that's what it does.

3. Justices Scalia and Breyer illustrate that advocates are sometimes superfluous at One First Street.

JUSTICE SCALIA: ... What's vague about it?

JUSTICE BREYER: The answer to that, if you want to pose it as a question to me


JUSTICE BREYER: would be that the void for vagueness ... [continues for two paragraphs]

4. Justice Kennedy illustrates one of the odd implications of the defendant’s proposed reading.

JUSTICE KENNEDY: It seems very odd that you can throw away the fish without violating the Act, but you can't throw away the picture [of the fish].

5. Justice Sotomayor enjoys the give and take.

JUSTICE SOTOMAYOR: What would -- what would have been your defense if they did [prosecute the defendant under another provision]?

MR. BADALAMENTI: He didn't corruptly do it.


JUSTICE SOTOMAYOR: Destroy[ing] and substituting fish is not a corrupt act?

MR. BADALAMENTI: It would have been my defense.



6. Justice Scalia makes the connection between Yates and Bond painfully clear.

JUSTICE SCALIA: Is there nothing else you --- who -- who do you have out there that that exercises prosecutorial discretion? Is this the same guy that that brought the prosecution in Bond last term?

7. The government tacitly concedes that secretly trying to win a board game (by "concealing" the "object" of winning) isn’t obstruction of justice.

JUSTICE SCALIA: Is there such a thing as an intangible object? I'm trying to imagine one.

MR. MARTINEZ: I think you could say that the object of the game of Monopoly is to win all the money, but that's not really what Congress was looking at here.


8. The Court shows off its familiarity with the man on the street.

MR. MARTINEZ: ... [I]f you stop someone on the street and ask them is a fish a tangible object, the answer would almost certainly be would be yes. ...

CHIEF JUSTICE ROBERTS: Well, what if you stopped them on the street and said: is a fish a 'record document or tangible object'?


JUSTICE SCALIA: I don't think you would get a polite answer to either of those questions.


9. Justice Scalia proposes a contingent but super-strong version of the rule of lenity.

JUSTICE SCALIA: Well, if that's going to be the Justice Department's position [that is, seeking the most severe available charges when bringing a case], then we're going to have to be much more careful about how extensive statutes are. I mean, if you're saying we're always going to prosecute the most severe, I'm going to be very careful about how severe I make statutes.

10. The government gets the last word--but not the last laugh?

JUSTICE KENNEDY: Perhaps Congress should have called this the Sarbanes-Oxley Grouper Act.


MR. MARTINEZ: Perhaps, Your Honor.

The above is from Re's Judicata.

Posted by Richard M. Re on November 6, 2014 at 12:44 AM | Permalink


You get the idea, JG, Scalia's position is not as clear-cut and clean as he alleges, don't you? Breyer gets to be a bit much after awhile, but at least he is upfront about it.

Anyway, they did seem to have fun. Sorta see why they took the case even w/o a circuit split and all. BTW, looking at the government's brief via SCOTUSBlog, this law was applied to various "tangible objects" other than business record type things, including to someone connected to the Boston Marathon bombing.

The Case of the Wrongly Disposed Grouper has some serious implications.

Posted by: Joe | Nov 6, 2014 11:04:15 AM

No. 9 struck me as worth noting, too. To a textualist, what should it matter in interpreting the scope of a criminal statute how the prosecutor charged with enforcing the law exercises discretion? I would think the statute either does or doesn't prohibit the conduct regardless.

That said, I don't read Justice Scalia to be making a rule-of-lenity point. He is not saying that the statute's coverage is vague and therefore breaks in the defendant's favor. Rather, he is saying that the DOJ will enforce the statute's coverage too liberally, so that the Court needs to trim the statute back. But isn't that view--the claim that some policy consequence of an interpretation can be read back into the text to create ambiguity--exactly what Scalia's blistering concurrence in Bond was directed at? ("Whatever has improbably broad, deeply serious, and apparently unnecessary consequences ... is ambiguous!")

Posted by: JG | Nov 6, 2014 10:49:32 AM

The comments to this entry are closed.