After a series of catastrophic corporate and accounting frauds in the early 2000s,1 Congress passed the Sarbanes-Oxley Act of 2002.2 The Act included a provision, codified as 18 U.S.C. § 1519, making it a crime, punishable by up to twenty years in prison, to “knowingly alter[], destroy[], . . . falsif[y], or make[] a false entry in any record, document, or tangible object” in order to obstruct a federal investigation.3 In 2011, Florida fisherman John Yates was convicted under that provision for destroying not records, not documents, but seventy-two undersized red grouper. Last Term, in Yates v. United States,4 the Supreme Court threw out Yates’s conviction, holding that the phrase “tangible object,” for purposes of § 1519, encompasses only objects “used to record or preserve information.”5 While the plurality opinion is couched in the language of statutory interpretation, a constitutional concern lurks under the surface: the level of notice mandated by the Due Process Clause. The Court reached the right result in narrowing the statute’s application, but it should have clearly identified the due process problem and applied the canon of constitutional avoidance to accomplish the same ends.
In August 2007, Yates was leading a fishing expedition in the Gulf of Mexico when his vessel, the Miss Katie, was boarded by John Jones, a Florida official tasked with enforcing state and federal fishing laws.6 Jones noticed that three red grouper on the boat appeared to be shorter than the twenty inches required by federal regulations.7 Jones measured all of Yates’s grouper, determining that seventy-two fish were undersized and separating those from the remainder of the haul.8 Jones issued a citation for this civil violation and told Yates to leave the undersized fish in their separate crates.9 Four days later, after the Miss Katie had returned to shore, Jones reviewed the offending fish and noticed that many were now longer than those he had previously measured.10 Suspecting foul play, Jones questioned a crewmember, who admitted that Yates had instructed the crew to cast the undersized grouper overboard and replace them with larger fish.11
In May 2010, almost three years after instructing his crew to toss the too-small grouper overboard, Yates was indicted for violating 18 U.S.C. § 1519.12 The government took the position that the discarded fish were “tangible objects” within the meaning of the statute, and that Yates had intentionally destroyed evidence relevant to a federal investigation. During his trial, Yates moved for a judgment of acquittal, arguing that § 1519’s reference to a “tangible object” must be read in light of the destruction of evidence in the Enron implosion that spurred Sarbanes-Oxley’s passage.13 It should thus be interpreted to reach only physical items used to store information — things like hard drives, not fish.14 However, the trial judge applied binding Eleventh Circuit precedent, which read the provision broadly, and denied the motion.15 Yates was convicted and sentenced to thirty days imprisonment, followed by supervised release for three years.16
The Eleventh Circuit affirmed Yates’s conviction, attending to the scope of § 1519 in a single paragraph.17 Writing for a unanimous panel, Judge Dubina held that the term “tangible object” “unambiguously applies to fish.”18 The court also determined that because the statute was clear, the rule of lenity did not apply.19
The Supreme Court reversed. Writing for a plurality of the Court, Justice Ginsburg20 began her analysis with the ordinary meaning of the statutory term. On its face, “tangible object” would clearly encompass fish, as they are things that can be “seen, caught, and handled.”21 However, “[i]n law as in life, . . . the same words, placed in different contexts, sometimes mean different things.”22 For Justice Ginsburg, the context in Yates started with § 1519’s title — “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy” — and the title of the section of Sarbanes-Oxley that created § 1519 — “Criminal penalties for altering documents.”23 She took these headings to indicate that Congress did not intend for “tangible object” to “sweep within its reach physical objects of every kind,” and she demanded a clearer statement from Congress if it did intend for the statute to function as “an all-encompassing ban on the spoliation of evidence.”24
Justice Ginsburg then argued that § 1519’s placement in a portion of the U.S. Code narrowly aimed at obstructive acts in financial contexts hinted at its limited scope.25 Other provisions of Sarbanes-Oxley, but not § 1519, were placed alongside statutes that criminalized obstructive acts generally.26 And in fact, one of those other provisions, § 1512(c)(1), “significantly overlap[ped]”27 with § 1519.28 In Justice Ginsburg’s view, § 1519 could not be read as broadly as the government proposed, or else it would have the same scope as § 1512(c)(1), thus robbing the latter provision of any independent meaning.29
The plurality opinion next applied three canons of construction to § 1519. First, based on noscitur a sociis, under which words draw meaning from their neighbors, the term “tangible object” is limited by its surrounding phrases, including what the Court characterized as references to “objects used to record or preserve information”30 — like “any record [or] document” — and the provision’s ban on “falsif[ying] or mak[ing] a false entry.”31 Second, the canon of ejusdem generis, under which a general term is read to encompass only items similar to the more specific words that precede it, supports a narrow reading of “tangible object.”32 Third, using the canon against surplusage, Justice Ginsburg determined that if Congress had intended “tangible object” to have the broad meaning advanced by the government, its two neighboring terms, “record” and “document,” would be rendered redundant.33 Justice Ginsburg thus forcefully rejected the “aggressive interpretation” advanced by the government.34
Finally, in case the tools of statutory interpretation applied by the plurality left any doubt as to the meaning of the provision, Justice Ginsburg invoked the rule of lenity, which requires that ambiguity in criminal statutes be interpreted in the defendant’s favor.35 The rule of lenity was especially appropriate here given § 1519’s draconian maximum sentence.36 Justice Ginsburg thus adopted the narrow reading of “tangible object,” interpreting it to reach only objects similar to those at the heart of the Enron debacle that spurred the statute’s passage — those used to “record or preserve information.”37
Justice Alito concurred in the judgment. While he agreed with the plurality’s constrained reading of “tangible object,” he believed the question could have been decided on narrower grounds. Justice Alito focused on three components of the statute: its nouns, its verbs, and its title.38 Agreeing with the plurality opinion, he wrote that the nouns “record” and “document,” through the aid of noscitur a sociis and ejusdem generis, help to diminish the scope of “tangible object.”39 Next, Justice Alito explained that the verbs “falsifies” and “makes a false entry in” also apply more neatly to nouns associated with “filekeeping.”40 Finally, the presence of “records” in the title of the provision also “points toward filekeeping, not fish.”41 While “perhaps none of these features by itself would tip the case in favor of Yates, the three combined” did.42
Justice Kagan dissented, joined by Justices Scalia, Kennedy, and Thomas. Justice Kagan argued that Congress intended for § 1519 to have a broad reach. Indeed, “conventional tools of statutory construction all lead to a more conventional result: A ‘tangible object’ is an object that’s tangible.”43 Citing Dr. Seuss’s One Fish Two Fish Red Fish Blue Fish, Justice Kagan wrote that, as “a discrete thing that possesses physical form,” a fish falls within the ordinary meaning of the phrase “tangible object.”44 This plain meaning of “tangible object,” encompassing all physical evidence, was supported both by its appearance in other statutes45 and by its context in § 1519.46 And Sarbanes-Oxley’s legislative history “puts extra icing on a cake already frosted,”47 clearly indicating Congress’s intent that § 1519 bar all destruction of evidence, reaching far beyond the financial frauds that spurred its passage.48
Having made her case for a broad reading of § 1519, Justice Kagan went on to attack the plurality and concurring opinions point by point. She started by critiquing the plurality’s reliance on the provision’s title and its location within the U.S. Code.49 She then argued that the opinion misused the canon of surplusage; she saw no irreconcilable conflict between sections 1519 and 1512(c)(1).50 Justice Kagan also saw no room for the canons of noscitur a sociis, ejusdem generis, or the rule of lenity; these tools were useful when a statute was ambiguous, but for her § 1519 was crystal clear.51 Ultimately, she wrote, “[s]ection 1519 is very broad. It is also very clear. Every traditional tool of statutory interpretation points in the same direction . . . .”52
In the final section of her dissent, Justice Kagan presented the “real issue” motivating the plurality’s treatment of § 1519: “overcriminali-zation and excessive punishment in the U.S. Code.”53 While Congress can rely on most sentencing judges to blunt the edges of many criminal laws,54 “§ 1519 is a bad law — too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion.”55 In this way, the provision “is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.”56 However, Justice Kagan wrote, it is beyond the role of a judge to rewrite a clear statute. Judges may voice their disapproval of laws “in lectures, in law review articles, and even in dicta. But [they] are not entitled to replace the statute Congress enacted with an alternative of [their] own design.”57
In Yates, the Court narrowed the scope of a broad obstruction statute. Given the financial mischief that prompted § 1519’s passage and the context in which the phrase “tangible object” is situated, the Court was right to reject a reading of the statute that encompassed every “physical item within the jurisdictional reach of the United States.”58 But it could have gotten to this result in a better way. The Court relied on the toolkit of statutory interpretation; it should have focused instead on the constitutional concerns raised by a broad reading of the statute. The Due Process Clause requires the government to provide notice that one’s conduct might be illegal, and the Court employs several doctrines to help police this requirement.59 The plurality only hinted at this notice rationale in an opinion focused almost entirely on statutory interpretation.60 The Court should have explicitly named the constitutional dimensions of the issue it faced and then applied the canon of constitutional avoidance to reach the same result. Doing so would have served as a valuable signal of how § 1519, and other similarly broad criminal laws, should be understood by other judges, prosecutors, legislators, and the public at large.
The government’s interpretation of § 1519, as well as the statute’s plain text, presented a potentially serious constitutional issue: if the provision prohibited the spoliation of all things that could hypothetically be used in a federal investigation, it risked violating the Due Process Clause. In Lambert v. California,61 the Court held that due process requires notice.62 In that decision, the Court determined that it was unconstitutional to prosecute an individual for a crime they did not know they had committed.63 In contrast to Lambert’s explicit constitutional holding, the Yates plurality obliquely invoked notice, using it as a mode of statutory interpretation: the Yates holding was informed by how the law’s extreme breadth and severe penalty could help elucidate congressional intent.64
The Court should have foregrounded the question of notice and articulated the constitutional implications of a § 1519 that reached red grouper.65 This notice concern66 is particularly acute here because those who violate the statute may face a two-decade sentence. As Justice Ginsburg wrote, “Yates would have had scant reason to anticipate a felony prosecution,”67 having simply received a ticket for a civil infraction.68 The plurality’s discussion and application of the rule of lenity further betray its concern with notice.69 Justice Ginsburg cited case law characterizing this canon as a tool that “ensures that criminal statutes will provide fair warning concerning conduct rendered illegal.”70 This language echoes one scholar’s description of the “core concept of notice” as asking “whether the ordinary and ordinarily law-abiding individual would have received some signal that his or her conduct risked violation of the penal law.”71 The plurality opinion should have explicitly acknowledged that the notice issue figured into the Justices’ approach and analysis.
Having articulated its constitutional notice concerns, the Court should then have applied the canon of constitutional avoidance and refused to adopt an expansive reading of “tangible object.”72 Despite countervailing reasons not to invoke the avoidance canon,73 doing so would have aligned with the Court’s past practice. First, in Skilling v. United States,74 the Court used constitutional avoidance to narrow a broad and vague statute rather than strike it in its entirety.75 Second, in Bond v. United States,76 decided in the Court’s last Term, the Court reversed the defendant’s conviction under an international chemical weapons accord because it threatened important federalism norms.77 Such a prosecution required a clear statement of congressional intent. Similarly, in Yates, Justice Ginsburg’s plurality opinion demanded a clear indication from Congress that it intended § 1519 to have a broad reach that threatened due process safeguards.78 But the Yates Court did not name the constitutional norm that informed its analysis.
The Court would have better served the judiciary, political actors, and the public had it directly addressed the due process issue raised by a broad reading of § 1519. Doing so would notify other judges as to how they should approach similar statutes, alert prosecutors about how the Court expects them to exercise prosecutorial discretion,79 and apprise legislators as to what the Court perceives as a problem with the current condition of criminal law.80 Overtly identifying the constitutional problem at issue could also enhance judicial legitimacy.81
The way in which notice figured into the plurality’s analysis, questions at oral argument,82 and Justice Kagan’s explicit language83 indicate that the Court was concerned with overbroad criminal laws and overenforcement more generally.84 The Justices saw § 1519 as a statute that could be applied indiscriminately, reaching any piece of physical evidence, and with severe consequences. And while the Court’s reliance on traditional tools of statutory interpretation to narrow the scope of an overbroad law may help to achieve its desired ends while mollifying the countermajoritarian anxiety,85 being candid about the case’s constitutional issue and the broader problem of overcriminali-zation could have had the added benefit of organizing public resistance to an ever-expanding federal code. Justice Kagan’s closing paragraphs speak powerfully about deeply rooted problems in the American criminal justice system, and they would have been even more impactful if they had been delivered as a part of the opinion narrowing the law’s application.86 Many of the pathologies of the criminal justice system are grounded in the lack of broad-based, motivated, and organized resistance to the expansion of criminal law.87 By articulating a constitutional concern and narrowing a statute in order to avoid running afoul of it, the Court’s opinion could have served to motivate and give voice to arguments that have so far been diffuse and muted.88