Justice Barrett is . . .my new hero?

Yes, Justice Amy Coney Barrett is reliably conservative and has contributed her vote to much of the backsliding the current Roberts Court has engaged in in the last few years.? However, she’s also emerging as a careful scholar and a justice with a practical bent that is often absent from her conservative colleagues and causes her to diverge from them in interesting ways.? I offer a couple of recent examples from two of the Court’s high-profile end-of-term cases:

First, in Fischer v. U.S. (No. 23–5572, June 28, 2024), the Court decided that federal prosecutors had improperly charged a January 6 rioter under a provision of the Sarbanes-Oxley Act prohibiting the obstruction of an official proceeding, in this case, of course, the certification of the 2020 Presidential election. ?The relevant statutory language reads:

(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.

?18 U.S.C. §1512(c) (emphasis added).? A plain reading of the statute would suggest that subsection (c)(2) would apply in cases where alteration or destruction of documents was not involved; thus, the use of the word “otherwise.”? Not so for the conservative majority on the Supreme Court, which apparently uses plain language interpretation when it suits them.? Instead, in nearly 15 pages of backflips and tortured analysis, the majority decided that (c)(2) also required the government to prove that some evidence or document was altered or destroyed, essentially importing the language of (c)(1) into the alternative basis for liability in (c)(2).

?Justice Barrett was having none of this.? She authored the dissent, joined by Justices Sotomayer and Kagan, taking the Court to task for abandoning its usual principles of statutory construction and, indeed, common sense:

?. . .? [S]nipping words from one subsection and grafting them onto another violates our normal interpretive principles. “[W]e ordinarily resist reading words or elements into a statute that do not appear on its face.” And “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act,” we generally presume that Congress did so intentionally.

?Slip Op. (dissent) at 3-4 (citations omitted).? Three cheers for common sense!

?Second, in Trump v. U.S. (No. 23–939, July 1, 2024), Justice Barrett joined in the majority’s opinion, holding that an ex-President subject to criminal prosecution has three levels of immunity:? absolute immunity for the exercise of core constitutional functions; qualified or presumptive immunity for other official acts; and no immunity for acts outside these categories.? However, in her concurrence, she declined to join in section III.C of the Court’s opinion, in which the majority essentially created a new rule of evidence or eviscerated the existing ones.? The Court rejected the government’s common-sense argument that “a jury could ‘consider’ evidence concerning the President’s official acts ‘for limited and specified purposes,’ and that such evidence would ‘be admissible to prove, for example, [Trump’s] knowledge or notice of the falsity of his election-fraud claims,’” Slip Op. at 30-31, holding that to do so would allow the government to backdoor evidence that would influence the jury to find liability based otherwise immunized conduct.? Only a group of judges who had never tried a case or were far from a trial court could have rejected this argument.

?Once again, Justice Barrett to the rescue.? In her concurrence refusing to join in this section, she points out that many criminal statutes contain elements that are not criminal in themselves.? She gives as an example a prosecution for bribery, which generally involves accepting payment (the illegality) in exchange for an official act.? Excluding evidence of the official act would “hamstring” the prosecution in proving the essential elements of the bribery charge. She notes: “To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.”? Slip Op. (concurrence) at 6.? She then goes on to note that the rules of evidence give trial judges several tools to protect an ex-President from the admission of such evidence unfairly prejudicing the jury:? the trial court could consider the nexus between the official and unofficial conduct; could exclude any unfairly prejudicial evidence under Federal Rule of Evidence 403; and could give the jury limiting instructions as to how they are to consider the evidence.? Slip Op. (concurrence) at 6-7.? I don’t know if Justice Barrett has ever tried any cases, but she certainly appreciates the practicalities of handling evidence at the trial court level.

?So, kudos to Justice Barrett.? May her independence and common sense continue!