The era of Pax Scalia may be over. Once upon a time, Justice Scalia’s brand of textualism — one that categorically shunned extratextual sources of statutory meaning — dominated among the Court’s textualists.1 But divisions in textualism have emerged from the shadow of Justice Scalia. Recently, in Fischer v. United States,2 the Court declined to apply the Sarbanes-Oxley Act of 20023 to alleged “obstructive conduct” undertaken during the January 6 insurrection.4 The provision at issue, § 1512(c)(2), criminalizes anyone who “otherwise obstructs, influences, or impedes any official proceeding.”5 Rejecting the United States’s position that § 1512(c)(2) served as a general obstruction statute, the Court held that a prosecution under the provision requires action taken with respect to evidence tampering.6 The majority grounded this decision in several bases, one of which being that the Sarbanes-Oxley Act had been enacted in the wake of the Enron accounting scandal and aimed to close a loophole that had thwarted evidence-tampering prosecutions.7 It was doubtful, the majority reasoned, that Congress would create “a catchall provision that reaches far beyond the document shredding and similar scenarios that prompted the legislation in the first place.”8 By using the “mischief” that § 1512(c)(2) aimed at, Fischer demonstrates divisions within textualist methodology. Textualists have long urged the need to view “text in context,” and Fischer seemed to signal that a statute’s mischief is relevant “context” that any textualist may consider. But Fischer left unresolved questions on how textualists should determine this context moving forward.
On January 6, 2021, Congress met to certify the votes of the 2020 presidential election.9 As Congress did so, a mob of supporters of then-President Donald Trump violently breached the Capitol building, assaulting police officers and bringing the certification proceedings to a halt.10 A federal grand jury returned a seven-count superseding indictment in the aftermath of the attack, charging Joseph Fischer, a former Pennsylvania police officer, with several crimes connected to the insurrection, including assaulting a federal officer, entering a restricted building, and engaging in disorderly conduct.11 In one count, the government charged Fischer with obstructing an official proceeding — Congress’s certification of the presidential election — in violation of 18 U.S.C. § 1512(c)(2).12 Section 1512(c) provides:
(c) Whoever corruptly —
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined . . . or imprisoned not more than 20 years, or both.13
Fischer moved to dismiss this count, asserting that § 1512(c)(2) covered only efforts to impair the integrity of evidence — and that his actions on January 6 did not qualify as such.14 The district court granted Fischer’s motion.15 The court, relying on its reasoning in a previous case, concluded that the word “otherwise” in § 1512(c)(2) linked it to § 1512(c)(1) such that Fischer needed to have taken an action with respect to a “document, record, or other object” before he could be prosecuted under § 1512(c)(2).16 The United States appealed.17
The D.C. Circuit reversed.18 Writing for the panel, Judge Pan19 concluded that § 1512(c)(2) serves as a general statute barring the obstruction of an official proceeding, not just acts of obstruction related to evidence impairment.20 While observing § 1512(c)(2)’s broad reach, Judge Pan determined that § 1512(c)(2) served as a “catch-all” provision intended to reach unforeseen situations.21 Judge Pan also rejected arguments that the statute’s structure, history, and purpose support a narrower reading,22 and noted that the provision’s “corruptly” mens rea requirement mollified potential concerns about the statute’s overbreadth or surplusage.23 Judge Walker concurred in part and concurred in the judgment but wrote separately to argue for a narrower definition of the statute’s mens rea requirement.24 Judge Katsas dissented, contending that the statute was ambiguous and should have been limited to acts impairing evidence.25
The Supreme Court vacated and remanded.26 Writing for the Court, Chief Justice Roberts27 rejected the D.C. Circuit’s interpretation of § 1512(c)(2) as extending to any form of obstruction of an official proceeding.28 Instead, the Court held that a defendant violates § 1512(c)(2) only when they interfere with evidence to be used in an official proceeding.29 Using the canons of noscitur a sociis30 and ejusdem generis,31 the Court found that § 1512(c)(2)’s “otherwise” provision linked § 1512(c)(2) to § 1512(c)(1)’s focus on evidence spoliation.32 In other words, in order to have “otherwise obstruct[ed], influence[d], or impede[d] any official proceeding, or attempt[ed] to do so”33 under § 1512(c)(2), a defendant must have taken some obstructive action with respect to a “record, document, or other object” as described in § 1512(c)(1).34
Chief Justice Roberts continued that the majority’s reading of § 1512(c)(2) “makes sense” given the provision’s history as a response to the Enron scandal,35 in which Enron’s accounting firm shredded incriminating financial documents when faced with a criminal investigation.36 According to Chief Justice Roberts, Congress “designed” § 1512(c)(2) to “plug [a] loophole” that had thwarted prosecution of the accounting firm.37 And “[g]iven that subsection (c)(2) was enacted to address the Enron disaster, not some further flung set of dangers, it is unlikely that Congress responded with such an unfocused and ‘grossly incommensurate patch,’” the Chief Justice concluded.38 “It would be peculiar to conclude that in closing the Enron gap,” Chief Justice Roberts wrote, “Congress actually hid away in the second part of the third subsection of Section 1512 a catchall provision that reaches far beyond the document shredding and similar scenarios that prompted the legislation in the first place.”39
Additionally, Chief Justice Roberts argued that interpreting subsection (c)(2) to cover all forms of obstructive conduct would render superfluous a wide array of obstruction statutes found elsewhere in the U.S. Code.40 For example, § 1512 provides for several means of committing obstruction, with varying penalties spanning from three years to life in prison.41 Reading (c)(2) broadly, the Court reasoned, “would override Congress’s careful delineation of which penalties were appropriate for which offenses.”42 The Chief Justice was also concerned that the D.C. Circuit’s broader interpretation of § 1512(c)(2) “would criminalize a broad swath of prosaic conduct.”43
Justice Jackson concurred, writing separately to emphasize how the majority’s reading of § 1512(c)(2) “follows from the legislative purpose that this statute’s text embodies.”44 While noting that this legislative purpose was perceptible from the statute’s text,45 Justice Jackson specifically accentuated § 1512(c)(2)’s legislative history. To Justice Jackson, a floor statement and a committee report revealed Congress’s intent for § 1512(c)(2) to target only obstruction related to document destruction.46 Justice Jackson also expressed disbelief that Congress would have inserted a broad obstruction statute with a twenty-year maximum penalty amid more “granular” provisions, without giving indications of its intent to do so.47
Justice Barrett dissented, joined by Justices Sotomayor and Kagan.48 She contended that “otherwise” in (c)(2) simply meant that the provision prohibits obstructing official proceedings “in a different manner” from the document spoliation described in (c)(1).49 Justice Barrett criticized the majority’s use of the noscitur a sociis and ejusdem generis canons, given that § 1512(c)(1) and (c)(2) are “distinct and independent prohibitions.”50 Because § 1512(c) contained neither a list of terms with an ambiguous word (noscitur), nor a general term preceded by a list of specific words (ejusdem), Justice Barrett argued that the Court had inappropriately — and unprecedentedly — applied these canons to the provision.51 Finally, Justice Barrett argued that the Court overstated concerns about statutory overlap and § 1512(c)(2)’s breadth, noting that the “corruptly” mens rea element and lack of a minimum sentence provide adequate safeguards against overcriminalization.52
In approvingly referring to the problem or “mischief” that inspired the Sarbanes-Oxley Act,53 the Fischer majority, consisting of several of the Court’s most avowed textualists, appeared to violate traditional textualist principles. Textualists have traditionally viewed the “mischief rule”54 as a purposivist tool, incompatible with textualism’s focus on statutory text and linguistic canons.55 On this view, then, Fischer may represent a brazen act of purposivism by several of the Court’s leading textualists. On another view, however, Fischer’s use of the mischief rule demonstrates continued divisions within — rather than a repudiation of — textualism. The Fischer majority’s emphasis on the Enron scandal suggests that the mischief addressed by a statute can be permissible “context” that the honest textualist may consult.56 If so, this view would represent an important division within textualist theory, given that such a position was roundly rejected by Justice Scalia — and, seemingly in the past, by other members of the Fischer majority.57 But the Fischer majority left major implications of its invocation of the mischief rule unclear.
Textualism is a formalist mode of statutory interpretation that aims to constrain judicial discretion by prioritizing the ordinary meaning of statutory text.58 While scholars debate the definition of textualism — and whether a singular definition of textualism even exists59 — textualists generally believe in several key principles. First, textualists generally disdain the use of extratextual sources in interpreting statutes.60 Textualists seek to constrain their inquiry to a statute’s text, alongside tools such as dictionary definitions, linguistic canons, and other statutory provisions (such as the whole act rule and whole code rule).61
Second, modern textualists are quick to assert that textualism is not simple literalism.62 Instead, textualists insist that statutory interpretation requires looking to “text in context.”63 Textualists often prioritize “semantic context,” or “evidence about the way a reasonable person conversant with relevant social and linguistic practices would have used the words.”64 (Purposivists, on the other hand, gravitate toward using “policy context,” which includes the mischief the law sought to address or the policy reflected in the statute’s structure.65) Again, however, textualists have traditionally urged that this context be limited to only text-based sources. In their treatise on textualism, Justice Scalia and Professor Bryan Garner note that while “the purpose of the text . . . is a vital part of its context,” such contextual purpose must “be gathered only from the text itself.”66
In keeping with their priority for statutory text and linguistic canons, textualists have shunned the mischief rule as impermissible purposivism. Justice Scalia believed that the mischief rule and purposivism were interchangeable67 — and interchangeably impermissible — given that both hold “that a judge-interpreter should seek an answer not in the words of the text but in its social, economic, and political objectives.”68 Justice Scalia’s refusal to heed the mischief of a statute is well-documented.69 And as Professor Samuel L. Bray notes, “[b]y and large, textualists seem to have accepted Justice Scalia’s rejection of the mischief rule.”70 Justices Alito, Gorsuch, and Kavanaugh have written (and Justice Thomas has joined) opinions that favorably cite Justice Scalia’s broadsides against viewing statutes in light of the “principal evil” that the legislature sought to address.71
On this view, then, Fischer seems discordant with Justice Scalia’s form of textualism. When the Fischer majority highlighted the mischief that the Sarbanes-Oxley Act ostensibly sought to remedy with § 1512(c)(2),72 it ventured outside the text. Fischer even specifically referenced legislative history — a longstanding textualist bugaboo73 — to provide background information about the aims of the Sarbanes-Oxley Act.74 In other words, Fischer’s use of the mischief rule relied on the sort of extratextual argumentation that Justice Scalia detested and refused to consider in cases like Bond v. United States.75 This may not have been so odd for Chief Justice Roberts, who does not style himself a textualist and whose previous opinions can be said to have used a form of the mischief rule.76 But Fischer’s lineup of Justices Thomas, Alito, Gorsuch, and Kavanaugh is eye-catching, given their self-avowed textualism and seeming disavowal of the mischief rule.
Thus, one wonders whether Fischer marks a blatant and conspicuous act of purposivism by a putatively textualist Court.77 After all, purposivists believe “that legislation is a purposive act, and judges should construe statutes to execute that legislative purpose.”78 By using the mischief of the Sarbanes-Oxley Act, the Fischer majority arguably considered the law’s “purpose,” violating Justice Scalia’s warning against “a judge-interpreter . . . seek[ing] an answer not in the words of the text but in its social, economic, and political objectives.”79 And even though the Sarbanes-Oxley Act’s mischief was not the sole or even primary basis for the Fischer majority’s decision,80 it may be argued that the Fischer majority’s textual analysis was really window dressing for its true motivating force: its understanding of the Sarbanes-Oxley Act’s purpose. Justice Barrett seemed to imply as much.81 After all, as Justice Barrett rightfully criticized, the majority’s textual analysis occasionally seemed on shaky ground. For example, the Court applied the ejusdem generis and noscitur a sociis canons to § 1512(c)(1) and (c)(2) although they were distinct and separately lettered statutory provisions — an application of the canons that the Court had never made before (according to Justice Barrett).82
But Fischer need not be seen as rank purposivism. Instead, Fischer may be a form of textualism that treats a statute’s mischief as a form of “context” that textualists can (and should) consider.83 The Fischer majority explicitly said as much. “Given that subsection (c)(2) was enacted to address the Enron disaster, not some further flung set of dangers, it is unlikely that Congress responded with such an unfocused and ‘grossly incommensurate patch,’” the Chief Justice wrote.84 “We therefore decline to adopt the Government’s interpretation, which is inconsistent with ‘the context from which the statute arose.’”85 Here, the Chief Justice quoted a passage from Bond v. United States that emphasized the statute’s “context” of implementing a treaty focused on “chemical warfare and terrorism.”86 In other words, Fischer appeared to explicitly envision that a statute’s mischief is permissible context.
This approach by the Court comports with scholarly arguments that textualism benefits from pragmatic enrichment like the mischief rule. Professor Bray has argued that the mischief rule is appropriate “context” for a textualist interpreter to consider.87 Relatedly, Professor Lawrence B. Solum argues that textualists should consider as relevant the “Communicative Context” of a statute, which may include not just text-based sources but “general background facts that elucidate the aim or purpose.”88 In other words, if an aim of textualism is to recover the meaning of “words as they would sound in the mind of a skilled, objectively reasonable user of words,”89 then using a statute’s mischief can be crucial. When a speaker makes a statement, especially an ambiguous one, it helps to know why that speaker made such a statement. If my friend tells me to “shut it,” it’s helpful to know whether they are concerned about an open cabinet door or think that I am talking too loudly.
Indeed, Justice Barrett seemed to make a similar move in her concurrence in Biden v. Nebraska,90 where she argued that the major questions doctrine is a contextual linguistic canon.91 Justice Barrett argued that the major questions doctrine is derived from the “commonsense principle[] of communication” that context matters.92 In the context of the principal-agent relationship between Congress and agencies, Justice Barrett wrote, an ordinary person would “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”93 Bray has made a similar observation in noting that the mischief rule shares a rationale with the major questions doctrine: Both hold “that a legal enactment is not integrated and complete in itself,” but must be “set against something else”94 — a communicative context that sheds light on the language’s semantic meaning.
But even if Fischer’s use of the mischief rule does not offend textualism, Fischer left several unanswered questions, including how textualists should locate a statute’s “mischief.” Textualists may occasionally be able to identify the mischief from the text of the statute itself.95 But more likely, textualists may have to glean the mischief extratextually, which further strays from traditional conceptions of textualism. Chief Justice Roberts got around this problem by relying on party presentation to find the mischief. He notes that “[t]he parties agree that to plug [the] loophole [at issue], Congress enacted Section 1512(c) . . . as part of the broader Sarbanes-Oxley Act.”96 (This seems to imply that party agreement on the mischief of a statute is a sufficient condition for the Court to adopt it.)
But what happens if the parties disagree on the mischief? Then, it seems, the Court must engage in more fulsome analysis of a statute’s mischief — analysis that might give the honest textualist pause. As an example, Justice Jackson’s concurrence exhaustively examined the Sarbanes-Oxley Act’s legislative history to find the problem the statute addressed.97 If “the mischief” is to be a legitimate part of the textualist enterprise, Justice Jackson’s approach — meticulous examination of the legislative history — may provide more evidence of a statute’s aim than the Fischer majority’s pithy stipulation of party agreement. But if textualists must rely on legislative history, are they textualists any longer?
All in all, the mischief rule is “a legal instantiation of a common sense point” that “[t]o understand statement x, an interpreter wants to know its setting.”98 Context is everything,99 and extratextual material can provide important perspective — a point that purposivists have long understood. Fischer shows the continued divisions within textualism about whether a statute’s mischief serves as appropriate context. Scholars should celebrate this development in textualism, given longstanding complaints of textualists’ “wooden” and mechanistic interpretations of underdeterminate text.100 But Fischer still raises questions of how textualists should find this mischief.