A Good Day For Textualism

The U.S. Supreme Court issued opinions in three cases today, that remind lawyers that the plain reading of the text of statutes matters, even when they product puzzling results and don't obvious serve either the larger scheme of a Congressionally enacted code or any obvious policy arguments.

In one, the court ruled unanimously (or nearly so, only part of the reasoning was unanimous) that an attorneys' fee provision governing awards in suits with the federal government allowed the prevailing party to recover paralegal fees at market rates. This is obvious, except for one key point. Attorneys' fees are limited to a far below market rate per hour, so this means that the prevailing party can recover more per hour in paralegal fees than in attorneys' fees. Still, the court took Congress at its word, leaving it free to craft such an irrational scheme. This makes a certain amount of sense because it is the dollars per hour cap on attorneys' fees and not the rest of the statute that is odd.

In the two other cases, the court indulged in fine line drawing (a more jaded observer might call it angels on pinheads analysis) to grant mercy to people convicted of money laundering in two different contexts.

In one of the cases, the defendant had $81,000 of cash in plastic bags in a secret compartment of his truck covered with animal hair, which he was driving through Texas to Mexico for the purpose of delivering as a salary to a leader of a criminal gang. The government proved that the defendant's actions had the effect of laundering the money, but offered no evidence that the defendant's actual intent was to launder the money. Concealing money does not amount to laundering it, the Court held. This is good and well as a general proposition, and the precedent will probably help some poor soul merely hiding money because he is afraid of highway robbery in some future case, but it is hard to reconcile with the facts of the particular case.

It would have been easy for the court to rule the other way, holding that judges and juries make take judicial notice of the context to an extent that makes it permissible to infer such an intent, but it chose not to do so, granting the no doubt shocked defendant, who surely believed that he was breaking some serious criminal law or another, a bit of seemingly random mercy.

Another case similarly due a fine line in a case concerning the applicability of money laundering laws to a situation where illegal gambling revenues where distributed as payments to various employees and customers of an illegal gambling ring. The law in question referred to "proceeds" of criminal activity, and the high court found in a queer 4-1-4 decision in which Justice Stevens cast the deciding vote despite the fact that the other eight justices disagreed with him on parts of his reasoning, that "proceeds" meant "profits" rather than "gross receipts" and thus that the government had not made it case. The statute was ambiguous on the point and the rule of lenity was applied. While the rule of lenity is a policy argument of a sort, its resolution can usually be ascertained from the text of the statute alone.

Again, it would have been easy to argue that a jury could have inferred that part of the gross receipts were profits, because they were dispatched to employees of the scheme, rather than exclusively to customers, but the court took a narrow view instead.

In both of the money laundering cases there is a plausible argument from the statutory text for the ruling that prevailed, but it is hard to see why the court would make such fine, and surely not necessary, distinctions in cases where the defendants are so clearly knowingly parts of organized criminal enterprises.

It is possible that there is some "shadow boxing" going on in these cases. In other words, there may be some unstated forms of legitimate conduct that the court is tryinig to protect by giving these statutes narrow intepretations. Given the degree to which money laundering can, in less crude cases, look similar to legitimate commercial banking, this isn't out of the question, but there is no strong evidence for this argument either.

These cases could also be read as a rebuke to federal prosecutors for sloppiness. The court surely isn't ruling in an effort to advance organized crime, and a concurring opinion in the case involving the money in the false compartment suggests that the government could easily have offered evidence that would have established its case. But neither prosecution effort seemed obviously deficient, and smart judges in these cases ruled in the prosecution's favor on these issues at trial, presumably based upon one fair and contextually sensible reading of the statutes.

This leaves textualism as the leading explanation for the results, and in a lower court that would probably be enough to explain these cases, but it still doesn't explain why the money laundering cases would receive grants of certiorari when the court would seem to have higher priorities than making fine distinctions for the benefit of obvious participants in organized criminal activity. The U.S. Supreme Court considers cases not just because they are wrongly decided. A case must also have importance beyond an incorrect interpretation of the law. This was probably, like most U.S. Supreme Court cases on federal statutory issues, driven by conflicts between circuits on interpretive issues.

Indeed, perhaps the most plausible story of how the court came to take on these cases and resolve them the way that they have is to demonstrate for circuit court judges that circuit conflicts on statutory issues will be resolved based upon textualism, even when the results seem implausible, in an effort to prevent such conflicts from arising in the first place. So, in the end, it was a good day for textualism in the federal courts.