At the very end of Justice Kagan’s otherwise enjoyable opinion in Yates, the Junior Justice added an ill-advised dicta about dicta. She began by making a fair (and I think correct) point–the plurality’s decision is driven by a (reasonable) concern about over-criminalization. There’s no reason a person who throws away some fish should go to jail for the statutory maximum of 20 years. Kagan concedes that point, but reminds us that here, the Florida Man–whose mens rea was “knowingly” impeding a federal investigation–only got 30 days. This isn’t the poster child of over-criminalization we read about in the Wall Street Journal.
However, after gutting the plurality’s argument, like the grouper, Justice Kagan goes overboard.
Still and all, I tend to think, for the reasons the plurality gives, that §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. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.
Why are these statements necessary, at all? What difference does it make if the Justices think it is “bad law?” Why, after voting to uphold Yates’s conviction, need the Court weigh in on this “deeper pathology in the federal code”?
In the final paragraph, Kagan climbs for the high-board to make an even bigger splash.
But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the stat- ute Congress enacted with an alternative of our own design.
I’ll forgive the uncharacteristically poor sentence construction (beginning two sentences in a paragraph with “But”–yuck), but her point seems entirely wrong. Why are judges “perfectly entitled” to say so, anywhere? And even if they are entitled to say so, how is it that dicta–where judge arguably have some room to opine on such matters–is equated to lectures and law reviews? These extra-judicial statements are not the proper place for the Justices to weigh in on the “folly.” Imagine if Justice Scalia ripped the effectiveness of the ACA, or if Justice Ginsburg critiqued the desirability of bans on gay marriage? (Never mind).
Justice Ginsburg’s indiscretions of late, and more recently those of Justice Stevens, should tell us that the Justices should not be talking about these matters in lectures or law review articles, or interviews, or anywhere. I’ll grumble at dicta, but they are part of the written opinion. Lectures and law reviews are not.
How about judges decline to opine on these matters outside their opinions, period. Wouldn’t that be something? We would be no worse off for it.