Sotomayor, J., dissenting
The majority also relies on the Model Penal Code (MPC). Ante, at 5–6. Although the MPC sometimes can provide supplemental evidence of generic meaning, see Taylor, 495 U. S., at 598, n. 8, it is critical to bear in mind that the MPC is fundamentally a “reform movemen[t].” United States v. Bailey, 444 U. S. 394, 403 (1980). Where that reform involves a definitive break from the state of the law at the time in question, the MPC is of limited value in discerning generic meaning. Such is the case here. The MPC eschews any talk of “obstruction of justice,” and instead sets out a series of articles under the heading “Offenses Against Public Administration.” ALI, MPC §§240–243 (1980). Those articles cover many offenses, such as escape from prison (§242.6), perjury (§241.1), and bribery (§240.1) that are clearly not generic obstruction of justice (indeed, perjury and bribery are listed separately from obstruction of justice in §1101(a)(43)(S)). Even in the article that most closely parallels traditional obstruction of justice (§242.1 “Obstructing Administration of Law or Other Governmental Function”), the MPC gave the word “ ‘obstructs’ ” an “expansive meaning,” §242.1, Comment 2, at 203, and “intended” for the offense described to “reach all legitimate activities of government,” not just “the administration of justice,” id., at 203–204. Because of these departures, which have not been widely adopted, the MPC carries little weight for purposes of discerning the core that forms generic obstruction of justice.
Despite these issues, the majority focuses, again without justification, on the MPC’s description of witness tampering
proceeding. See Ind. Code Ann. §35–44–3–4(a)(1); Md. Ann. Code, Art. 27, §26; Miss. Code Ann. §97–9–55; Nev. Rev. Stat. Ann. §199.230 (1996); N. C. Gen. Stat. Ann. §14–266 (1996); Vt. Stat. Ann., Tit. 13, §3015; W. Va. Code Ann. §61–5–27. State law on the whole thus favors a pending investigation or proceeding requirement for generic obstruction of justice.
