The blog in a nutshell

The blog in a nutshell

Tuesday, November 3, 2015

Where I pat myself on the back because why not

JUSTICE SCALIA:  I assume that the person read this and ­­ and thought that that's what it meant. MS. O'CONNELL:  And ­­ and, Justice Scalia, I think that's why the canons of interpretation don't get anybody a hundred percent of the way there.
JUSTICE SCALIA:  I agree.  And what I worry about is the rule of lenity.  You have these dueling canons, and you have a rule that when the government sends somebody to jail for ten years, it has to turn sharp corners.It has to dot every I and cross every T.  It has to be clear.  And, you know, we've been discussing this dueling canons and so forth.  My goodness, I have no assurance what the right answer is.  But I know that somebody could read this and think that it means what the petitioner says it means.  And if the case, it seems to me the rule of lenity comes into play.  That's ­­ that's what concerns me most about this case, not the dueling canons.

 JUSTICE BREYER:  What were the ­­ what were the other three?  You said there were four reasons.  I started where I think Justice Scalia did.  Of course, I  might more often than he think that the canons don't help us all that much.  And this ­­ this is a poster child, I think, for that proposition.

 JUSTICE SOTOMAYOR:  I mean, your brief and the solicitor general's sort of tunnel in on this one provision of many.  But I'm wondering why? I'm looking at the entire provision [and it] has many State court analogues that don't involve interstate commerce, correct?

JUSTICE BREYER:  The basic point is I counted ­­ made an effort to count these.  I accept your argument there are about ten of these sections that ­ you know, you you couldn't use that as a limitation.  But if I look at those ten individually, I will discover that ­­ Congress did want to pick up State crimes there or they don't use exactly jurisdiction language like evade a tax imposed under this title.
JUSTICE BREYER:  And it isn't really going to be the anomaly I thought it was. 

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