Neil Gorsuch has no one to blame but himself

Noah Feldman, Tribune News Service

There are plenty of reasons to wonder why a sitting Supreme Court justice would choose to co-author a book called “Over Ruled” arguing that the US has too many laws. But the strangest aspect of Neil Gorsuch’s new volume is that it rests on a contradiction. The problem that most bothers Gorsuch is prosecutors using laws to charge people with crimes in ways that the laws’ authors never intended — and that is almost entirely the product of textualism, Gorsuch’s favorite method of interpreting statutes. Textualism is a legal theory that says laws should be interpreted according to their words, not according to their common-sense purpose. For an example, consider the story behind the 2015 Supreme Court case of Yates v. United States, which Over Ruled discusses extensively in its first chapter.

Yates, a commercial fisherman, was criminally charged with catching undersized fish in the Gulf of Mexico, then destroying the evidence by throwing those fish away. A federal jury convicted Yates on two separate charges. One was unproblematic: destroying property to prevent seizure by federal agents. Yates had no basis to challenge this conviction, and he didn’t. The other charge, the one that reached the Supreme Court, was a serious reach. Federal prosecutors charged Yates with violating a provision of the Sarbanes-Oxley Act that criminalises the destruction of “any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation … of any matter within the jurisdiction of any department or agency of the United States.” According to the prosecutors, the “tangible objects” in question were the fish. Gorsuch and his co-author, Janie Nitze, are perfectly correct to see this charging decision as mistaken. The relevant provision of Sarbanes-Oxley, passed in the aftermath of the Enron scandal, was clearly aimed at document destruction, not throwing dead fish overboard. And the Supreme Court was right to overturn that part of the conviction. In an opinion written by liberal lion Justice Ruth Bader Ginsburg, the court explained why it made no sense to interpret the words “tangible object” outside of the context of Sarbanes-Oxley and its focus on documents. To bring the point home, Ginsburg quoted a 1932 Supreme Court precedent explaining that “meaning well may vary to meet the purposes of the law.” That meaning could “be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed.” In other words, the purpose of the law matters. What the prosecutors got wrong was that they ignored the purpose of Sarbanes-Oxley and looked only at its words.

Here’s the catch (if you will): If Neil Gorsuch stands for any idea in his time on the Supreme Court, it is that purpose must not matter in interpreting statutes. Neither should context. Only the words count. In fact, textualism was behind the dissent in the Yates case, written by Justice Elena Kagan and joined by most of the court’s conservatives. It’s not hard to imagine that if Gorsuch had been on the court at the time, he would have voted to uphold Yates’ conviction. So long as judges insist on reading statutes without reference to their purpose or context, prosecutors will — understandably — charge defendants according to the literal words of the statute. Gorsuch’s pet theory is the reason prosecutions like Yates’s happen at all.

If, however, judges look to a law’s purpose, it follows that prosecutors won’t have the same incentive to try to stretch statutes to cover cases that fall within their literal words but not their obvious purpose. That sensible point of view has recently been expressed in a different book. Earlier this year, retired Justice Stephen Breyer — who joined Ginsburg’s opinion in Yates — published "Reading the Constitution: Why I Chose Pragmatism, Not Textualism." The title may be a bit clunky, but the main point is a sensible one that Breyer has been making for many years: Textualism is a terrible idea because it ignores statutory purpose. To be “pragmatic,” in Breyer’s sense, is to use common sense and consider purpose and context in interpreting the law.

The upshot of all this is that Gorsuch is part of the problem he claims to want to solve — a big part. There’s a simple, low-cost solution to the problem of prosecutorial overreach: Interpret the law according to its purpose, not its literal words.

Gorsuch’s textualism amounts to judicial endorsement of the idea that prosecutors should charge based on words, not common sense. That’s the idea that should be overruled.