Opinion: The Supreme Court should have known better how its January 6 ruling would be perceived
(CNN) — It was no great surprise to close watchers of the Supreme Court that the justices on Friday narrowed one of the principal criminal statutes that federal authorities have used to prosecute those who stormed the US Capitol on January 6, 2021. After all, the justices largely signaled which way they were leaning during the oral argument in April — and, at a more general level, the court has been narrowing the scope of an array of federal criminal statutes in recent years, including in cases decided earlier this month.
It’s also possible, regardless of one’s political persuasion, to come down on either side of the issue. Indeed, Justice Ketanji Brown Jackson — appointed by President Joe Biden — joined in Chief Justice John Roberts’ majority opinion, while Justice Amy Coney Barrett — appointed by former President Donald Trump — wrote the dissenting opinion, which was joined by two far more liberal justices, Sonia Sotomayor and Elena Kagan.
At its core, the legal dispute animating the strange divide among justices in this case is about how much courts can and should consider a statute’s broader context when interpreting its plain words. As is often the case with such debates, there are plausible arguments on both sides, even if some of the justices’ votes in this specific case, Fischer v. United States, might have been inconsistent with their past ones.
Instead, the deeper problem with the court’s ruling in Fischer is what the justices didn’t say. Even though the ruling will clear the way for only a small minority of the January 6 defendants to be re-sentenced, or perhaps even re-tried, there is nothing in Roberts’ opinion that explains that point directly — or that makes clear that most of the January 6 convictions will remain intact. The best Roberts could muster was a throwaway line that cryptically suggests the charges against Trump will not be affected — and even that was missed by at least some readers.
Put another way, there was nothing in the court’s opinion to push back against those who view all of the January 6 prosecutions as little more than the Biden administration’s persecution of political opponents. Instead, those folks quickly took to social media to claim vindication. As right-wing commentator Julie Kelly, in a post amplified by Trump, wrote on Truth Social, “In a massive victory for J6 political prisoners and an unprecedented defeat for the corrupt Biden/Garland/Monaco/Graves DOJ, SCOTUS has overturned the DOJ’s use of 1512(c)(2), obstruction of an official proceeding, in J6 cases.”
Of course, that’s not what happened. Narrowing a statute and remanding so lower courts can decide if it still applies to that case (and others) is quite a far cry from “overturn[ing] DOJ’s use of” it in every case. Just as importantly, many — if not most — of those January 6 defendants who were convicted under this statute have also been convicted of violating other statutes, so that their convictions will stand even if this charge does not.
But it takes careful reading of the 43-page ruling, and a nuanced perspective on the differences across the more than 1,000 January 6 prosecutions, to understand that. More than that, none of those claiming exoneration today will likely care if it turns out, five years from now, that virtually no one actually benefitted from the court’s narrowing of the statute. All that matters in the short term is the ability of those who may not know better to claim that the Supreme Court somehow repudiated the January 6 prosecutions in general.
There is a rich, long-running debate about the extent to which the Supreme Court can and should care about the public messages its rulings send. To take just one especially well-known example, Chief Justice Earl Warren famously wrote the unanimous, majority opinion in Brown v. Board of Education so that it would be short enough to be reprinted in newspapers.
But even as this court has claimed that it ought not worry about these considerations, its behavior has been to the contrary. In the Colorado ballot disqualification case earlier this term, for instance, Barrett wrote a separate concurring opinion, in between the divergent views of the five other Republican appointees and the three Democratic appointees, to underscore “the message Americans should take home” from the ruling. To similar effect, during the oral argument in the Trump immunity case, Justice Neil Gorsuch worried openly about the need for the court to craft “a rule for the ages” to settle the public’s view, rather than deciding the case narrowly. The court, it seems, has no problem openly worrying about how its rulings are publicly perceived when it wants to.
The absence of such a concern in the January 6 obstruction case is thus telling. And it will have the effect, at least in the near term, of allowing the justices’ ruling to be perceived and portrayed as a far more sweeping denunciation of the Biden administration than it actually is — with no one on the high court explaining why that view is wrong.
Among other things, that misperception will only further embolden a future President Trump, if he wins election this November, to drop the remaining January 6 prosecutions and pardon those already convicted — even where the charges are completely unrelated to the statute the court narrowed in Fischer. The justices are savvy, smart people who live both physically and metaphorically inside the Capital Beltway. They should have known better.
The-CNN-Wire
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