Here are my 10 favorite oral argument moments from Yates. (There were more to choose from!)
1. Justice Scalia gives Justice Kagan a brief Latin lesson.
JUSTICE KAGAN: … And to me, it seems like other object is, if anything, a more classic case of that canon that I can’t pronounce the name of, ejusdem whatever.
JUSTICE SCALIA: Generis.
JUSTICE KAGAN: Good. That’s what I count on my colleague for.
2. Justice Kagan points out that over-criminalization is nothing new, in a “Congress will be Congress” kind of way.
JUSTICE KAGAN: You know, it seems as though this is — Congress gives very strict penalties to lots of minor things, and — but that’s, you know, that’s what it does.
3. Justices Scalia and Breyer illustrate that advocates are sometimes superfluous at One First Street.
JUSTICE SCALIA: … What’s vague about it?
JUSTICE BREYER: The answer to that, if you want to pose it as a question to me
JUSTICE BREYER: would be that the void for vagueness … [continues for two paragraphs]
4. Justice Kennedy illustrates one of the odd implications of the defendant’s proposed reading.
JUSTICE KENNEDY: It seems very odd that you can throw away the fish without violating the Act, but you can’t throw away the picture [of the fish].
5. Justice Sotomayor enjoys the give and take.
JUSTICE SOTOMAYOR: What would — what would have been your defense if they did [prosecute the defendant under another provision]?
MR. BADALAMENTI: He didn’t corruptly do it.
JUSTICE SOTOMAYOR: Destroy[ing] and substituting fish is not a corrupt act?
MR. BADALAMENTI: It would have been my defense.
JUSTICE SOTOMAYOR: Touche
6. Justice Scalia makes the connection between Yates and Bond painfully clear.
JUSTICE SCALIA: Is there nothing else you — who — who do you have out there that that exercises prosecutorial discretion? Is this the same guy that that brought the prosecution in Bond last term?
7. The government tacitly concedes that secretly trying to win a board game (by “concealing” the “object” of winning) isn’t obstruction of justice.
JUSTICE SCALIA: Is there such a thing as an intangible object? I’m trying to imagine one.
MR. MARTINEZ: I think you could say that the object of the game of Monopoly is to win all the money, but that’s not really what Congress was looking at here.
8. The Court shows off its familiarity with the man on the street.
MR. MARTINEZ: … [I]f you stop someone on the street and ask them is a fish a tangible object, the answer would almost certainly be would be yes. …
CHIEF JUSTICE ROBERTS: Well, what if you stopped them on the street and said: is a fish a ‘record document or tangible object’?
JUSTICE SCALIA: I don’t think you would get a polite answer to either of those questions.
9. Justice Scalia proposes a contingent but super-strong version of the rule of lenity.
JUSTICE SCALIA: Well, if that’s going to be the Justice Department’s position [that is, seeking the most severe available charges when bringing a case], then we’re going to have to be much more careful about how extensive statutes are. I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.
10. The government gets the last word–but not the last laugh?
JUSTICE KENNEDY: Perhaps Congress should have called this the Sarbanes-Oxley Grouper Act.
MR. MARTINEZ: Perhaps, Your Honor.