Eating crow in today's fish case

Well, I was wrong again.

The Supreme Court decided Yates v. United States today. This is the case about whether undersized fish are "tangible objects" within the meaning of a federal criminal evidence-destruction prohibition. A majority of the Court ruled for the petitioner, a fisherman who argued that the fish he threw overboard were not covered by the statute. The vote was 5-4. Justice Ginsburg wrote for a plurality consisting of herself, Chief Justice Roberts, Justice Breyer, and Justice Sotomayor. Justice Alito wrote separately concurring in the judgment. Justice Kagan authored a dissent that was joined by Justice Scalia, Justice Kennedy, and Justice Thomas. 

In my initial MOJ post on the case, I predicted that the petitioner would lose unanimously. After oral argument, I acknowledged that my initial prediction appeared "unsustainable." Noting the criminal law professors' brief signed by Rick Garnett and endorsed by Greg Sisk, I wrote that if their arguments "end up being adopted in an opinion for the Court (as they were by various Justices at oral argument), kudos to Rick Garnett and Greg Sisk for being on the right side of interpretive history on this intra-MOJ split." Although there was no opinion for the Court, the outcome resulting from the plurality plus Alito plainly rests on adoption of the arguments advanced by petitioner and underscored by petitioners' amici curiae.

In light of Greg Sisk's post-argument post describing Yates as "a door that led to a large stadium populated by a multitude of controversial legal issues," I look forward to the post-decision commentary and analysis. I don't know that I'll have much to say given the lingering taste of crow in my mouth. I will take consolation, however, in Justice Kagan's dissent and the good company she kept in that opinion. For whatever it's worth, the fisherman petitioner did not get the duck-hunters' vote.