Editor's Note: STeve Vladek He is a CNN legal analyst and professor at the University of Texas School of Law. He is the author of the Supreme Court newsletter “One First.” The opinions expressed in this commentary are his own. Find more opinion on CNN.
CNN —
It came as no big surprise to close observers of the Supreme Court on Friday when it narrowed one of the key criminal laws that federal authorities have used to prosecute those who stormed the U.S. Capitol on Jan. 6, 2021. After all, the justices broadly indicated their inclination during oral arguments in April, and on a more general level, the court has narrowed the scope of a range of federal criminal laws in recent years, including in a case decided earlier this month.
And regardless of your political persuasion, it is possible to take either side on this issue: Indeed, Justice Ketanji Brown Jackson, an appointee of President Joe Biden, joined Chief Justice John Roberts' majority opinion, while Justice Amy Coney Barrett, an appointee of former President Donald Trump, wrote a dissenting opinion joined by two much more liberal justices, Justices Sonia Sotomayor and Elena Kagan.
The underlying legal dispute that has caused a curious divide among the justices in this case is the extent to which courts can and should take into account the broader context of a statute when interpreting its language. As is often the case in such disputes, there are plausible arguments on both sides, even though some of the justices' votes in this particular case, Fisher v. United States, contradicted past ones.
Rather, the deeper problem with the Fisher decision is what the justices did not say: Even if the decision paves the way for a small percentage of the January 6 defendants to be resentenced or retried, there is nothing in Justice Roberts' opinion to directly address that point or to make clear that the vast majority of the January 6 convictions will remain intact. The best Justice Roberts could muster was a casual remark implying that the charges against Trump would be unaffected, but even that was missed by at least some readers.
In other words, there was nothing in the court's opinion to counter those who believe the entire January 6 prosecution was simply an attempt by the Biden administration to persecute political opponents. Instead, those who did were quick to take to social media to protest their innocence. Julie Kelly, a right-wing commentator popularized by Trump, wrote on Truth Social: “In a major win for the J6 political prisoners and an unprecedented defeat for the corrupt Biden/Garland/Monaco/Graves Justice Department, the Supreme Court has overturned the Justice Department's application of 1512(c)(2) obstruction of official process in the J6 case.”
Of course, that didn't happen. Narrowing the statute and remanding it so that lower courts can decide whether it still applies to that case (and other cases) is not at all the same thing as a “reversal of judgment.”[ing] The Department of Justice “uses” it in every case. Just as importantly, many (if not most) of the January 6th defendants convicted under this statute were also convicted of other violations of the law, so their convictions would stand even if this charge were vacated.
But to understand that, one must read the 43-page decision carefully and take a nuanced look at the differences between the more than 1,000 prosecutions of January 6. Instead, those who argue for innocence today probably won't care if, five years from now, it turns out that very few people actually benefited from the Supreme Court's rollback of the statute. In the short term, all that matters is the ability of those who may not know better to argue that the Supreme Court struck down the January 6 prosecutions in their entirety.
There is a long and rich debate about the extent to which the Supreme Court can and should care about the messages it sends to the public with its decisions. To take one particularly famous example, Chief Justice Earl Warren famously wrote the unanimous majority opinion in Brown v. Board of Education short enough to be reprinted in a newspaper.
Yet despite the Court's claims that it need not worry about such considerations, its actions have been the exact opposite. For example, in the Colorado vote invalidation case earlier this term, Justice Barrett wrote a separate concurring opinion between the opposing views of the five other Republican-appointed justices and the three Democratic-appointed justices, emphasizing “the message Americans should take home” from the decision. Similarly, during oral arguments in the Trump immunity case, Justice Neil Gorsuch openly worried that the Court should create “timeless rules” to calm public perceptions, rather than rule narrowly. The Supreme Court seems to have no problem publicly worrying about how its decisions will be received by the public when necessary.
Subscribe to our free weekly newsletter
The absence of such concerns in the January 6 obstruction case is telling. And at least in the short term, the Supreme Court's decision will be perceived and portrayed as a much broader condemnation of the Biden administration than it actually is. No one on the Court has explained why that view is wrong.
Among other things, this misunderstanding will only embolden President-elect Trump, if he wins this November's election, to drop the remaining charges up until January 6 and pardon those already convicted, even if those charges are completely unrelated to the statute the Court narrowed in Fisher. The justices are astute, intelligent people who live in the capital, both physically and figuratively. They should have known better.
