Tuesday, March 01, 2016
Justice Kagan knows that there are two Zoolander movies!
She says so in today's dissent in Lockhart v. United States:
JUSTICE KAGAN, with whom JUSTICE BREYER joins, dissenting.
Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new StarWars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.” Surely a person would have cause to protest if punished under that provision for violating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase—“involved with the new Star Wars movie,” “in New York,” “relating to insider trading”—applies to each term in the preceding list, not just the last.
That ordinary understanding of how English works, in speech and writing alike, should decide this case. Avon-dale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2). The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list. But properly read, the modifier applies to each of the terms—just as in the examples above. That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children. And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty. I respectfully dissent.