Colorado Voices: One fish, two fish, nine justices

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Colorado Voices

I feel sorry for the justices of the U.S. Supreme Court.

My heart breaks for those nine Ivy League law school graduates who have the most renowned jurist jobs in the world. I weep for this august octet plus one who, from the outside looking in, have privileged, well-paid, and prestigious jobs in which whatever they say trumps the mandates of Congress and the president of the United States.

Colorado Springs Felony Lawyers In Front Of The Court House

How emotionally stressed each of them must be. After all, what once were thought to be a series of questionable or flawed legal decisions can only now be viewed as the result of overwork, substance abuse or worse.

I had my concerns when they filched Bush vs. Gore from Florida when most of us thought that it never belonged in the federal court system. But at the time, I figured, hey, they are SCOTUS, so they are smarter than the rest of us.

So even when Justice Antonin Scalia — asked to explain the Bush vs. gore ruling — would tell people to “get over it,” I just wrote it off as something akin to the logic generally cited as to why a dog does certain things that the rest of us cannot.

But I went from worrying about rank partisanship to concern over the group’s collective mental clarity when the Citizens United decision came down. A corporation is a person? Really? Good luck foisting that argument successfully in a bar argument.

Finally, though, it became clear what was going on when Justice Ruth Bader-Ginsberg fell asleep during the State of the Union. To her credit, she later admitted to being under the influence of alcohol. “The audience for the most part is awake because they’re bobbing up and down all the time and we sit there, stone-faced, sober judges. But we’re not, at least I was not, 100 percent sober.”

Of course, I’m all in on the concept of getting loose for a social event, especially when you can hide it beneath a black robe. But it’s their decision-making process on the job that may be affected by the Supremes overindulging. Especially now that the District of Colombia has legalized the recreational use of marijuana, we in Colorado know all too well why there will continue to be no cameras present in the Supreme Court during any oral argument.

Confirmation of my substance-abuse theory came in late February when a decision was handed down in Yates vs. United States. In a 46-page decision, the court reversed an 11th Circuit holding that catching too many red grouper and then tossing them back was a criminal violation of the Sarbanes-Oxley Act of 2002.

Sarbanes-Oxley is “a law designed to protect investors and restore trust in financial markets following the collapse of Enron.” Well, good for it. But after a federal agent found that a fishing ship’s catch contained undersized red grouper in violation of federal conservation regulations, the ship’s captain told a crew member to throw the undersized fish overboard, ditching the evidence and thus setting this case in motion.

Had Captain Yates not done so, he would only have had to pay a fine for catching undersized fish. But by engaging in the time-honored activity of throwing the small ones back, the captain was charged with “destroying, concealing, and covering up undersized fish to impede a federal investigation.” Under the law, a person may be fined or imprisoned for up to 20 years if he “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence a federal investigation.”

Yates had argued that the section at issue set forth “a documents offense,” and that its reference to “tangible objects” subsumes “computer hard drives, logbooks, [and] things of that nature,” not fish.

In any event, the justices reversed the conviction, which had been affirmed by the 11th Circuit. Justice Ginsberg wrote the majority opinion (under what circumstances, we aren’t aware), and agreed with the fish-flinger that an itty-bitty red grouper is not a “tangible object” because the gilled ones are not used “to record or preserve information.” In a concurring opinion, Judge Samuel Alito described how salamanders and sand dunes don’t qualify, either.

Of course, this was the predictable 5-4 split, with a vigorous dissent. Justice Elena Kagan, writing for a minority that included Justice Scalia, dragged this argument further down by citing — you may have guessed it — Dr. Seuss’s “One Fish Two Fish Red Fish Blue Fish.”

Hence my deep concern. What kind of wacky substance was circulating in chambers when that vote was taken, and does this explain some similarly aberrant holdings by SCOTUS?

The whole case sounds fishy to me, and makes me wonder if old age and happy hour are catching up with our best and brightest. But here’s the good news: At least they let Yates off the hook.

Dan Rector is an attorney in Colorado Springs. He was a Colorado Voices writer in 2002.

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