Sotomayor, J., dissenting
See §1507 (“picket[ing] or parad[ing]” with the intent to interfere with “the administration of justice”); §1508 (listening to or recording jury “deliberat[ions] or voting”); §1510 (interference with reports of information “to a criminal investigator”); §1516 (interfering with a “Federal auditor in the performance of official duties”); §1509 (interfering with “due exercise of rights” under a court order); §1513 (retaliating against a witness for participating in “an official proceeding”).
The primary outlier amongst the more recent additions to chapter 73 is §1512, which criminalizes tampering with a witness, victim, or informant. As the majority notes, that provision provides that “[f]or purposes of this section … an official proceeding need not be pending or about to be instituted at the time of the offense.” §1512(f)(1). Instead of favoring the majority’s conclusion, however, §1512 is the exception that proves the rule. There would be no need to clarify that the provision applies absent a pending proceeding unless there were an established background understanding that obstruction of justice requires such a proceeding.[1] Because the question at hand concerns the meaning of heartland obstruction of justice, excluding “nongeneric” variants “defin[ed] … more broadly,” Taylor, 495 U. S., at 599, what matters here is the general rule, not a singular exception to it. To use a lighthearted example, it is clear that the “generic” meaning of “mammal” includes giving
- ↑ In a testament to the gravitational force of the weighty background rule that a pending proceeding is generally required, this Court has interpreted §1512 to at least require a foreseeable proceeding. See Arthur Andersen LLP v. United States, 544 U. S. 696, 707–708 (2005).
enforcement of the criminal laws of a State … with the intent to facilitate an illegal gambling business.” 18 U. S. C. §1511(a). Given that §1511 is a specialized conspiracy provision intended to “discourage organized crime’s corruption of state and local officials for the purpose of facilitating gambling enterprises,” Iannelli v. United States, 420 U. S. 770, 788 (1975), it has no bearing on core obstruction of justice. Section 1512 is discussed infra, at 10–11.
