When conservative legal figures were told that Judge Ketanji Brown Jackson, President Biden's only appointee to the Supreme Court, would join Republican appointees in ruling against the Biden Justice Department's sweeping and novel interpretation of obstruction of justice law, most thought that was unlikely.
After all, the Department of Justice was twisting the law to enforce punishments on pro-Donald Trump rioters. The January 6, 2021 Capitol riots are central to the Democrats’ anti-Trump political strategy, and the rioters are the most hated and unpopular group in the liberal political imagination. For many conservatives, at least, it is unlikely that Jackson would blame the administration on such a loaded and politicized issue.
Justice Jackson was a surprise. In Fisher v. United States, he broke with the court's other liberals on Friday and ruled 6-3 in favor of the Capitol storming defendants. “Our commitment to equal justice and the rule of law requires that courts faithfully apply criminal laws to their letter, even in times of national crisis and when the alleged conduct is indisputably abhorrent,” he wrote in his concurring opinion.
Joseph Fisher was indicted on seven counts for his participation in the riot, one of which the judges asked about: the obstruction statute passed in the wake of the Enron accounting scandal in 2001. Formally known as 1512(c), the statute provides for a maximum prison sentence of 20 years for anyone who fraudulently “alteres, destroys, mutilates, or conceals” a record, document, or other thing so as to “prevent its use in any official proceeding” or “otherwise” obstruct or affect such a proceeding.
Since then, prosecutors have used Section 1512(c) to target evidence tampering, as Congress intended. But Attorney General Merrick Garland's Justice Department has sought to apply the law to the Capitol attack for “otherwise” affecting the congressional process of counting electoral votes in ways the bill's authors did not anticipate. About 350 of the 1,400 riot defendants have been charged under Section 1512(c).
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Of course, even though prosecutors’ new interpretation of the law means that serious felony charges could be brought against peaceful protesters in the future, no respectable news outlet has scrutinized the Department of Justice’s expansion of power. As I asked in 2022, “Did the protests at the Senate floor during the Kavanaugh Supreme Court confirmation hearings, which led to hundreds of arrests, improperly disrupt congressional proceedings?”
The questions might have seemed disrespectful, or even downplayed the gravity of the January 6 attack on the Capitol. But as Justice Jackson wrote, “it is the task of this Court to determine what conduct is prohibited by applicable criminal law.” The government was asserting undefined power to investigate and punish conduct that “influences” governmental proceedings — influence being a Washington specialty — and that it derived that power from document-shredding laws.
Chief Justice John G. Roberts, writing in the majority opinion joined by Jackson, found the government's interpretation of the law implausible. A general phrase like “influencing the litigation” is “given a more focused meaning by the terms with which it is related.” Because 1512(c) enumerates ways in which one can corruptly influence a litigation by falsifying evidence, Roberts argued, judges must interpret the prohibition on “otherwise” influencing litigation to refer to similar conduct.
Judge Amy Coney Barrett's dissent read the law out of context, applying it to “any kind of conduct that influences or obstructs any official proceeding.” That's terrible. What conduct by Washington politicians, activists, lawyers, and bureaucrats doesn't, at some point, influence some regulatory or Congressional official proceeding?
Justice Barrett, joined by Justices Elena Kagan and Sonia Sotomayor, argued that the statute's adverb “corrupt” requirement “should exclude innocent conduct.” If it targets conduct that influences the proceedings, it is hardly a limitation; it merely encourages prosecutors to speculate about their targets' motives. People are more likely to speculate about the “corrupt” motives of those with whom they disagree politically.
Of course, the majority's ruling doesn't mean the rioters will go unpunished. As Roberts noted, the other charges Fisher faces “are punishable by up to six months to eight years in prison.” The ruling draws a line at a law that's especially vulnerable to political abuse: Prosecutors need to charge people with crimes that Congress created; they can't bend the criminal law because they believe the punishments for those crimes are insufficient.
In his concurring opinion, Judge Jackson emphasized that prosecutors could bring 1512(c) charges in the Capitol riot case if they could show that the rioters undermined “the availability or integrity of materials used in the January 6 trial,” such as documents used to certify Biden's election victory. But it's hard to imagine the government trying to do that against most or even some of the riot defendants, many of whom probably didn't even know such documents existed.
Conservatives suspect that conservative Justices Barrett, Roberts, and Brett M. Kavanaugh sometimes join the Court's liberal wing in controversial cases in order to strengthen the Court's bipartisanship. The Court's liberal minority does not have the same incentive; indeed, they may worry that if liberals defect too frequently, public pressure on the Court's conservative majority will weaken.
But Jackson's background as a public defender (one of the reasons for her nomination) may make her sensitive to certain abuses of prosecutorial power, of which this case is a clear example. But the group affected by this case is a politically advantageous opponent for Democrats in an election year. Jackson is one of the Supreme Court's two most progressive justices, but her vote for Fisher is an admirable demonstration of intellectual independence.
