Legal Commentary

Out of the 24 decisions handed down so far by SCOTUS this term, I award the coveted "Golden Blinkers" prize for most Senselessly Formalistic Statutory Interpretation to Watson v United States (06-571). 

Issued on December 10th, 2007, Watson held that receiving an unloaded gun in exchange for drugs is not ?using? the gun  in a drug transaction under 18 U. S. C. §924(c)(1)(A).  This result could be sound enough: If the purpose of the statute is to penalize the combination of guns and drugs because the two together lead to violence, then it is plausible to believe that a sensible Congress would not want to impose a special sanction on someone who used guns as a form of currency to purchase drugs as opposed to, say, rubles, euros, or seashells.  (On the other hand, since undergoing leg surgery on Monday, I've been consuming the very drug (oxycodone) that Mr. Watson was selling, and I can assure the reader that anyone possessing the stuff ought to be kept far, far away from firearms -- or blogs, for that matter).

The wackiness of Watson is not the result but the reasoning:  Watson distinguishes rather than overrules Smith v. United States, 508 U.S. 223 (1993), a decision in which the Court held that  ?use? includes ?use as an item of barter.?  Smith had "used" the firearm by exchanging it for cocaine.  So, as the law stands now, if one exchanges a  gun for drugs, one "uses" the gun in a drug transaction and is eligible for a stiffer sentence, but, if one exchanges drugs for a gun, one does not "use" the gun and will get a lighter sentence.

Such a result, as a matter of policy, strikes me as utterly insane.

I can imagine that a sensible legislature might impose special penalties on both drugs-for-guns and guns-for-drugs. I can imagine a sensible legislature refraining from imposing such penalties on either transaction. But I cannot conceive of any sensible reason why a legislature would want to penalize giving guns but not receiving guns. The Court derived these results from the notion that firearms are not "used" unless they are "actively used" to further the forbidden transaction. Receiving a gun is just not "active" enough, but bartering away a gun is. The only thing wrong with this reasoning is that it ignores the overall policy reason for enacting the statute in the first place -- which is presumably to deter people from mixing drugs with guns. What possible difference should it make that a defendant is on the receiving end rather than the giving end?

I have an inkling that the Smith/Watson result is the product of the Court's increasing adherence to formalistic modes of interpretation that ignore the larger purpose of a statute to focus on the meaning of individual phrases taken in isolation from those larger purposes. Scholars and judges make familiar normative arguments in favor of such approaches -- e.g., reduction in administrative costs (Vermeule), reduction of judicial discretion (Easterbrook), disciplining of Congress (Scalia).

I do not intend to engage with the abstract merits of these approaches. I simply observe that the result in Smith/Watson seems to me a reductio ad absurdum -- preposterous, nonsensical, law-is-an-ass whimsy. If this is the fruit of the Vermeule/Easterbrook/Scalia approach to statutory construction, then count me out.