by Noah Feldman
The conservative majority of the Supreme Court has held that a law that bars obstructing or impeding a federal proceeding doesn’t apply to the Jan. 6 attack on the Capitol — despite the rioters’ effort to obstruct the counting of the 2020 electoral votes. The decision is an outrageous betrayal of the conservatives’ own supposed principle of interpreting statutes according to the words of the text rather than according to Congress’s intent.
The law in question, enacted as part of the Sarbanes-Oxley Act, was written to criminalize the destruction of documents that might have been part of a government proceeding. So in the abstract, the court’s holding is reasonable, even correct. The problem is that the five conservatives who voted in the majority officially believe that legislative purpose and legislative intent are irrelevant and that only text matters. And the text is as clear as it could be.
The result is evident hypocrisy — and a partial reprieve for former President Donald Trump, who encouraged the riot, and the many rioters who have been charged under the law.
The two relevant provisions of the law start with one that criminally punishes anyone who “alters, destroys, mutilates, or conceals a record, document, or other object … with the intent to impair the object’s integrity or availability for use in an official proceeding.” The next provision punishes anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Since Sarbanes-Oxley was enacted in 2002 to go after corporate malfeasance, it’s fairly straightforward to conclude that Congress intended the second provision to refer back to the first. You can’t destroy a document or record to thwart an official proceeding nor “otherwise” obstruct an official proceeding with respect to documents and records.
Here’s the catch: Textualists aren’t supposed to ask what Congress intended, just what it said. I know, I know, that sounds crazy. It is crazy! But it’s the official theory of statutory interpretation held by the court’s conservatives. Invented more or less by the late Justice Antonin Scalia, textualism is supposed to restrain judges from inserting their own policy preferences into the law.
Barred from relying on intent, the five conservatives who voted in the majority fell back on what experts in statutory interpretation often think of as the scoundrels’ method: They invoked several of the so-called “canons” of statutory interpretation, Latin maxims of some antiquity that are supposed to help guide judges. The problem with the canons is that there are a whole bunch of them and a sophisticated judge can invoke them to reach almost any conclusion desired.
Based on the clever deployment of canons, Chief Justice John Roberts’s majority opinion reasoned that the word “otherwise” in the second provision of the law directs the meaning of that provision back to the first provision, where the documents and records are mentioned. That reference back, he concluded, shows that the second provision doesn’t apply to obstructing an official proceeding the way the Jan. 6 rioters did, but only to obstructing it with respect to documents and records.
As proof that this conclusion amounted to conservative textualist hypocrisy, consider that two justices crossed ideological lines in the case.
Justice Amy Coney Barrett, ordinarily a conservative, wrote the dissent, joined by liberal Justices Elena Kagan and Sonia Sotomayor. Barrett forthrightly stated that the majority “cannot believe that Congress meant what it said.” Because she decided to follow the core principle of textualism, namely that Congress must be held to what it has said, not what judges think Congress intended, Barrett concluded that the statute extended to the Jan. 6 rioters’ conduct. Barrett, who clerked for Scalia, was unwilling to join the other conservatives in their distortion of textualism’s doctrine.
Justice Ketanji Brown Jackson also crossed ideological lines, joining the majority’s opinion and writing her own concurrence in which she explained that the intent and purpose of Congress in enacting Sarbanes-Oxley make it pretty clear that the criminal statute should be interpreted not to cover the Jan. 6 rioters’ conduct.
Jackson’s liberalism includes the laudable view that the criminal law shouldn’t be interpreted so widely that it swallows up conduct that Congress didn’t intend to make criminal. And she rightly believes that intent and purpose matter in reading the law. Because her vote wasn’t necessary for the conservative majority, her decision to join the majority opinion reflects principle but didn’t harm the cause of holding the Jan. 6 rioters criminally liable for their conduct.
There are other statutes under which the Jan. 6 rioters, and Trump, can still be charged. The rioters trespassed on government buildings and did damage. So in practice, today’s holding doesn’t derail the criminal process. It is, however, an object lesson in how textualism has failed at its stated objective, namely forcing judges to be nonpolitical.
When, at some future time, courts have officially repudiated textualism, this case will be yet another example of why the approach was bad in theory and ineffectual in practice.
