From around the internet

Textualism

Last week, the U.S. Supreme Court decided Pugin v. Garland, in a 6 – 3 ruling that involved textualist interpretation. In the case, Pugin entered a guilty plea to felony accessory after the fact.

Subsequently, Pugin was notified that he would be deported due to his status as an illegal immigrant. A federal statute governs what crimes trigger deportation. The federal law states that deportation is required upon conviction of an aggravated felony and offenses related to obstruction of justice. Pugin argued that his offense did not “relate to obstruction of justice” because his crime was not in connection with some other pending investigation. His crime, he argued, did not occur until after the underlying crime was complete, and, therefore, no investigation was obstructed.  

The majority opinion, authored by Justice Kavanaugh, found that the Court was required to determine which state or federal offenses “relate” to obstruction of justice. Kavanaugh and the majority ruled that “relate to” in the statute means something more than the strict definition of obstruction of justice found elsewhere in the federal criminal code. Kavanaugh noted that the most successful obstruction of justice would prevent an investigation from ever occurring in the first place, so “relate to” did not require hinderance of an actual ongoing investigation.  

Justice Sotomayor authored the dissent, which was joined by Justices Kagan and Gorsuch. They argued that the majority’s interpretation made nearly every offense “relate to” obstruction of justice.

Justice Brown authored a concurrence that provided the most strictly textualist analysis. She suggested that in ruling the Court should look to the text of the federal obstruction of justice statute. She noted that the federal obstruction statute includes offenses that do not require a pending investigation, and she would limit the interpretation to those items enumerated in the statute. Justice Brown, the newest liberal on the Court, it turns out, was our best textualist in this instance.

More Textualism

Justice Brown demonstrated her textualist cred in another opinion last week as well. In Lora V. United State, the U.S. Supreme Court unanimously ruled, in an opinion authored by Justice Brown, that a certain section of the federal firearms code does not require consecutive sentences.

Under the facts of the case, Lora was convicted of aiding murder and conspiracy to distribute drugs under section 924(j) of the federal code. A separate section of the same statute, 924(c), requires consecutive sentencing for certain offenses specifically listed in 924(c). The trial court issued consecutive sentences for Lora’s two convictions citing 924(c). Lora’s offenses, however, were not specifically listed in 924(c). Federal Courts, though, have interpreted offenses in 924(j) to be included in the consecutive sentencing requirements laid out in 924(c). The U.S. Court of Appeals agreed with the trial court’s interpretation.

In arguing the case, the Government acknowledged that the text of the statute did not specifically require consecutive sentenced, but argued that sections 924(j) and 924(c) should be read “holistically.” “Holistically” is code for not textualism.

The U.S. Supreme Court in rejecting the Government’s argument held that Lora’s offenses did not require consecutive treatment. In so ruling, Justice Brown stated “by its ‘plain terms,’ Congress applied the consecutive-sentence mandate only to terms of imprisonment imposed under that subsection. Congress put subsection (j) in a different subsection of the statute.” She further noted, “Congress could certainly have designed the penalty scheme at issue here differently. It could have mandated harsher punishment under subsection (j) than under subsection (c). It could have added a consecutive-sentence mandate to subsection (j). It could have placed subsection (j) within subsection (c). But Congress didn’t do any of these things. And we must implement the design Congress chose.”

Justice Elena Kagan once stated in praise of Justice Antonin Scalia, “we are all textualists now.” Justice Brown, the Court’s newest member, must have gotten the memo.