As readers of this blog will recall, Lockhart's about whether the phrase "involving a minor or ward" modifies only "abusive sexual conduct" in the list "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward" (a list of sentence-enhancing priors for child pornography sentencing purposes), or modifies all three types of offenses. The government, awkwardly, reads sexual abuse and abusive sexual conduct as synonyms, with the result that "involving a minor or ward" merely modifies one of two synonymous phrases and thus does no meaningful work. As far as I can tell, not a single Justice bought this reading of the statute. Insofar as some Justices were inclined to support the government's bottom line - that "involving a minor or ward" only modifies "abusive sexual conduct" - they clearly intend to get there by reading "abusive sexual conduct" to mean something less than "sexual abuse." Having made that move, the statute could then plausibly be read to require child victims only for lesser abusive-conduct offenses, but not for more serious sexual-abuse offenses.
How though, one might ask, would one distinguish sexual abuse from abusive sexual conduct? Isn't abusive sexual conduct sexual abuse by its terms? One solution, which Justice Alito (and to a lesser extent the Chief Justice) pursued throughout argument with great persistence, is that substantive federal offenses use very similar terms and give them different definitions. Sections 2241 and 2242 of Title 18 define aggravated sexual abuse and sexual abuse, respectively, to involve abusive sexual acts (which Section 2246 defines to require, at the least, unmediated contact with genitalia), while Section 2244 of Title 18, in tandem with Section 2246, defines "abusive sexual contact" to require abusive contact with clothed genitalia, or various erogenous organs. Couldn't these definitions explain the elusive distinction between sexual abuse and abusive sexual conduct?
As Ann McConnell, assistant to the SG, forthrightly conceded in fighting off this friendly attempt to rescue the government's case, the federal definitions of sexual abuse and abusive sexual contact probably aren't much help here. One problem, of course, is that Congress didn't use the phrase "abusive sexual contact" in the child-pornography sentencing provision; it wrote "abusive sexual conduct." Another problem is that if Congress had really meant to say that state convictions for sexual abuse and abusive sexual contact as defined in federal law were priors, it could have expressly incorporated those definitions - as it in fact did in another recidivist sentencing provision.
These difficulties notwithstanding, Justice Alito wasn't taking no for an answer. When McConnell said the government didn't think the child pornography sentencing provision was tacitly referencing the definitions of sexual abuse and abusive sexual contact because it could have explicitly referenced them, Alito sarcastically asked whether abusive sexual conduct and sexual abuse were just "catchy phrases that came to [Congress's] mind," and suggested that while Congress gets "a 'D' for their drafting of this statute," he was nevertheless pretty sure that Congress was thinking of its definition of abusive sexual contact when it wrote about state convictions relating to abusive sexual conduct.
Outside, though, of Alito and the Chief Justice, who seem fairly bent on saving the government from the infirmities of its position, it's difficult to find support in this transcript for the government. Going down the list, in no particular order:
Justice Kennedy asked a series of noncommittal, narrow questions that eventually centered on the role of lenity in the case, which isn't a great sign for the government. It should be noted, though, that his questions doubted that lenity should be stronger as to sentencing provisions, so perhaps his concern was merely with assuring himself that only normal-strength lenity applied.
Justice Breyer initially expressed some interest in Alito's theory. But when it was the government's turn to argue, Breyer challenged McConnell to explain why the statute wasn't at least ambiguous. After McConnell gave her reasons, he then suggested that he found all of them wanting, and asked why, if the parties' textual arguments were in equipoise, the legislative history of the statute, which described the various sexual abuse priors as child abuse offenses, shouldn't control.
Justice Scalia entered argument with his mind clearly made up for Lockhart, seemingly taking the view that, while the ambiguities in the statute favored Lockhart on balance, the statute was ambiguous enough that lenity resolved the case in Lockhart's favor.
Justice Kagan, in the beginning of argument, suggested that abusive sexual conduct possibly covered some set of lesser sexual-abuse offenses (like indecent exposure to minors), and that on that reading, it would make sense if the least severe set of offenses only counted as priors if they involved child victims. But at the end of McConnell's argument, she stated pretty flatly that in her view, Lockhart's preferred canon for disposing of the case, the newly minted series-qualifier canon (more on this below), on which modifiers modify an entire list in certain circumstances, likely "trumped" the government's preferred canon, the last antecedent rule, under which a modifier modifies the last possible antecedent only.
Justice Ginsburg didn't say much at argument, but asked the government a few questions - albeit not especially pointed ones - about a letter by an acting assistant attorney general, written a couple years after the sentencing provision at issue in the case was enacted, that appears to have embraced Lockhart's reading of the provision.
Justice Sotomayor asked just two questions. One was skeptical of the government's view that "abusive sexual conduct involving a minor or ward" may have been added to the statute simply to clarify that statutory rape was a prior; she asked why, if that was the case, Congress didn't just write "sexual conduct involving a minor or ward." The other question, put on rebuttal to Lockhart's federal public defender, Edward Zas, was why Congress would have made federal sexual abuse crimes enhancing priors irrespective of victim age, but not done the same with state sexual abuse crimes.
Justice Thomas, of course, asked no questions.
Prediction: I think Scalia, Breyer and Kagan to a lesser extent are pretty unavailable votes to the government. It is barely possible that the government could eke out a narrow majority comprised of Alito, Roberts, and at least three of Sotomayor, Ginsburg, Thomas and Kennedy, but that would require a lot of breaks and a fairly improbable alignment. It's hard to imagine Ginsburg or Sotomayor providing the fifth vote to affirm Lockhart's sentence while Scalia votes for Lockhart on the basis of lenity.
Canon entrepeneurship: This case has been framed by the parties as a battle of dueling canons - the rule of the last antecedent, and the series-qualifier rule. The series-qualifier rule, though, was first discovered by name, at least, in Justice Scalia's 2012 book, Reading Law. And as Neal Goldfarb points out at his blog, LawnLinguistics, while the series-qualifier rule has some antecedents in caselaw, it was never stated in Scalia's precise formulation, or anything too close to it, until Scalia's formulation. Particularly, Goldfarb says that the closest thing to series-qualifier in the Court's cases is a fairly distant relative, namely a kind of non-canon that says modifiers modify all their possible antecedents when it makes sense for them to do so, while Scalia's formulation requires global modification in the case of any "straightforward, parallel construction" involving all the verbs or nouns in a list. Moreover, the somewhat closer cases in the lower federal courts and state courts that Scalia cites never applied series-qualifier or antecedents thereof, prior to Reading Law, to postpositive modifiers (i.e., modifiers that follow the nouns they modified) - the very kind of modifier at issue here.
But even though series-qualifier may be Scalia's extremely recent invention, and has yet to be mentioned by the Court in a case since Reading Law was published, this didn't stop the government from beginning its argument by framing the case as a battle between "two competing canons of statutory interpretation," or acknowledging at argument that something called "the series-qualifier canon" exists and arguing that it didn't apply. Nor did it stop Justice Kagan from holding forth on the interplay between "that series-qualifier rule" and the rule of the last antecedent, reciting the elements of the rule as Scalia formulated them, and suggesting that Lockhart's a case where Scalia's canon "trumps" one of the oldest canons around. Nor did it cause anyone to question Lockhart's counsel on the provenance of a canon for which his brief largely cites to Scalia's book.
What's going on here? One possibility is that the SG and Justices assume Scalia's book accurately describes the canons and the cases it cites, even though it's been famously pilloried as inaccurate on just these points by Judge Posner. Another possibility is that the Justices, and especially the SG, find it awkward to question the accuracy of a sitting Justice's scholarship. I suspect both of these explanations have some merit. But the most interesting possibility is that the Justices don't much care about the provenance or age of a linguistic canon, so long as it makes a certain kind of sense.
If that's true, and I think it is, two things follow. One, that the Court doesn't care whether Congress drafts against the background of a canon or even has advance notice of one, but rather believes that a canon is valuable insofar as it accurately describes congressional linguistic practices and congressional intent (or "objectified" intent, if one's a textualist of a certain stripe). Two, the Court's apparent openness to new canons, particularly countercanons to existing ones, suggests that the general academic posture to canons, which assumes that they're a fixed set of hidebound hoary maxims that misread congressional intent and criticizes them on that basis, is mistaken. Instead, we should be talking about how to improve the canons - or, even if one believes that even a perfected set of canons will generate error (which of course it would), debating whether judges would really get cases right more often if they engaged in free-form contextualism. Unfortunately, while scholarship of that kind could be quite influential, there isn't much of a market for articles on specific canons, especially linguistic ones, which has left courts with virtually no guidance as they formulate rules that purport to reflect legislatures' linguistic practices.
Legal indeterminacy: One underappreciated and subtle difference between textualism and intentionalism, which this argument brought out, is that textualism is, at least in theory, far more open to the possibility that a statute's meaning is indeterminate. Scalia and Breyer's differing approaches to the difficult textual ambiguity Lockhart presents nicely illustrate this. Here is Scalia introducing the rule of lenity into the argument: "we've been discussing these dueling canons and so forth. My goodness, I have no -- I have no assurance what the right answer is. But I know that somebody could read this and think it means what the petitioner says it means. And if that's the case, it seems to me the rule of lenity comes into play."
Here, it appears to me, Scalia is suggesting that this is possibly a case where statutory meaning is indeterminate. Now, one might think of lenity as just another canon that determines statutory meaning. But I think that's wrong. To rule for a defendant on lenity isn't to make a claim about statutory meaning at all. It's to say that, in cases of irresoluble ambiguity, a default rule favors criminal defendants, not because anyone thinks that Congress necessarily enacted or intended the defendant-favorable rule, but because of concerns about notice and judicial criminal-lawmaking. (At most, lenity constructs meaning, but plays no role in interpreting it.) Because irresolubly ambiguous and vague texts exist, textualism is committed to the view that irresolubly ambiguous and vague statutes exist - which is a part of why, I think, ambiguity-resolving rules like Chevron and lenity have such appeal to Scalia.
On the other hand, Justice Breyer, having found the textual arguments in the case at "equipoise," argued that "before turning to the rule of lenity . . . the legislative history helps," and that the legislative history ultimately made manifest Congress's intentions and thus the meaning of the statute. For Breyer is not so quick to think that statutory meaning runs out. As an intentionalist, he believes that even if a statute is textually ambiguous on a question, Congress may nonetheless have had a definite intention on that question, and that that intention is law. Of course, intentionalists, Breyer included, do not believe that a statute always has some singular intention behind it on every litigable question under the statute. Chevron, a deeply intentionalist opinion by a committed intentionalist, Justice Stevens, acknowledges that there are cases where Congress lacks "an intention on [a] precise question at issue." But in theory, those cases are a subset of the cases where textualists find irresoluble ambiguity, which is why, in part, Justice Breyer has never been able to make peace with Chevron as it's commonly understood today - to trigger deference whenever a statute is textually ambiguous.*
* Which isn't at all how it's explained in the Chevron opinion itself. As Frederick Liu has recently pointed out, in addition to the language I quoted above from footnote 9, Stevens cites a passage from Roscoe Pound in footnote 10, in which Pound discusses "cases in respect to which the lawmaker had no intention." These, and only these, were the cases where Stevens appears to have envisaged Chevron deference kicking in.
Continuing debates over legislative history: Reliance on legislative history is at its lowest ebb on the Court right now in nearly a century, but I believe it will make a comeback, because the arguments for its use are getting smarter. Defenders of legislative history used to conceptualize it as a kind of revelatory gloss on what a statute meant, which opened them up to arguments that intentionalists were allowing Congress to delegate the details of statutory meaning to single members or committee staff, in violation of the non-delegation doctrine and the requirements of bicameralism and presentment. Today, intentionalists tend to justify legislative history as a synopsis of the legislator/legislative staff-created materials on which legislative counsel-penned statutory text is based. What is the non-delegation critique of that story? This new debate played out in the Lockhart argument, as Breyer, the Court's beleagured defender of legislative history, took a minute to defend his reliance on committee materials before and after getting around to asking a specific question:
the report, the way these are actually written is that a general idea is given to a person whose job it is to draft. And that drafter tries to put in words the general intention that's been described, and the report is used to describe what the general intention was...After Justice Breyer asked this question, Scalia asked the SG's assistant whether she thought "Congress can leave it to its staff to decide what a statute means . . . Isn't legislative power nondelegable?" This non-delegation critique of Breyer's argument, though, seems like a non sequitur; at what stage in his account of legislation has Congress "le[ft] it to its staff to decide what a statute means"? What Breyer says it leaves to staff is statutory text (which is undeniable), and if Scalia thinks that violates the non-delegation doctrine, it's hard to see why the response would be an interpretive approach that solely looks to the product of the unlawful delegation.
So I read [the committee report] and said, short, but clear. And that's what the drafter would have been looking at when -- the first one, anyway -- working with the staff of the committee when trying to translate general intentions of senators and representatives into actual language. And I think it's not contrary to popular belief to say that senators and representatives do hire staff to do such things and do not sit there with pen and pencil thinking, where does the "or" go?