Something fishy at the Supreme Court

Providing yet more proof that the Justices on the Supreme Court can’t agree on anything, a ruling was handed down this week over a government fishing expedition. But in this case it was literal. There’s too much obvious humor in this story to pass up, but it does address a question of government overreach and the wielding of power.

Captain John Yates, of the fishing vessel Miss Katie, was boarded in the Gulf of Mexico in 2007 by federal agents for a routine inspection of “gear, fishery and boating safety compliance.” Upon viewing the catch of the day, the agent noticed that some of the red groupers which Yates had hauled in appeared to be below the minimum legal length. He was ordered to return to port for a chat with the National Marine Fisheries Service over the violation. Rather than complying, Yates tossed the fish over the side.

Clearly that was the wrong thing to do in legal terms, but the Captain wound up being prosecuted under Sarbanes-Oxley and tossed in jail for thirty days for destruction of a “record, document or tangible object” under that law. By a narrow majority, the Supremes sided with the fisherman, and did so with some humor.

“Fish one may fry,” Justice Ruth Bader Ginsburg said, but she concluded that Captain John Yates did not violated the law by “dumping six dozen small-sized grouper back into the sea.”

Ginsburg was joined in her opinion by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor.

She clarified the law, saying that a “tangible item” is “better read to cover only objects one can use to record or preserve information, not all objects in the physical world.”…

Justice Elena Kagan dissented in the case and was joined by Justice Antonin Scalia, Justice Anthony Kennedy and Justice Clarence Thomas.

She said she would have applied the statute that Congress enacted in part because “destroying evidence is destroying evidence, whether or not that evidence takes documentary form.”

“A fish is, of course, a discrete thing that possesses physical form,” Kagan wrote, quoting Dr. Seuss’ “One Fish Two Fish Red Fish Blue Fish.”

Keeping up with the fish theme, she said the plurality’s “fishing expedition comes up empty.”

I suppose the Justices are entitled to a bit of fun on their job, even if these are the official records of the law of the land which will be handed down to our children in perpetuity. But all fish stories aside, I believe there’s a reason why the court split on this one. On the one hand, it seems obvious that – insignificant though the event might seem – the Captain had to be punished for something. The fish were under the legal size limit so he was breaking a law. Far more serious is the fact that, facing prosecution, he threw them over the side. That is the same thing as destruction of evidence just as surely as it would have been if he’d been caught with a pound of cocaine and he’d chucked that into Davey Jones’ locker.

But the second part of the question is, did we really have to summon up Sarbanes-Oxley to go after him? Isn’t it already illegal to obstruct justice by destroying or disposing of evidence? S-O is a vastly flawed law, but it was put in place to combat abuse in the financial sector. It is also a relatively huge prosecutorial hammer to be swinging at a thumbtack like this. I can see how the Justices might feel that this represented overreach in that regard, but the ruling really needs a remedy. The problem here is not the fisherman or the court, but the prosecutor who handled it. If we don’t have a more appropriate law on the books to charge such a person with, we need one. And if we do and it wasn’t used, that prosecutor needs a refresher course at law school.