The Santos Resolution (?)

By Marty Lederman
on Jun 2, 2008 at 10:46 am

Santos, argued the first week of the Term in October, was by far the oldest outstanding decision until today. (After today, the only remaining case from those argued in 2007 is Boumediene.) Based on the majority opinions in the other October cases, Tom had surmised that Santos was assigned to Justice Breyer. It now appears, however, that Justice Alito received the assignment (from the Chief Justice), but that Justice Stevens’s vote was in flux and that, in some sense, Justice Alito “lost” his majority somewhere along the way when Justice Stevens decided to affirm the vacation of the convictions. (In retrospect, we can guess that perhaps the Chief did not assign Justice Breyer any October opinions because Justice Breyer was writing the (presumably complex) dissent in Medellin.)

Justice Stevens’s concurrence thus is effectively the governing opinion, even though the other eight Justices all reject his legal distinctions (four on either side of him). This odd posture leads Justice Scalia to write the following in the plurality opinion:

We think it appropriate to add a word concerning the
stare decisis effect of JUSTICE STEVENS’ opinion. Since his
vote is necessary to our judgment, and since his opinion
rests upon the narrower ground, the Court’s holding is
limited accordingly. See Marks v. United States, 430 U. S.
188, 193 (1977). But the narrowness of his ground consists
of finding that “proceeds” means “profits” when there
is no legislative history to the contrary. That is all that
our judgment holds. It does not hold that the outcome is
different when contrary legislative history does exist.
JUSTICE STEVENS’ speculations on that point address a
case that is not before him, are the purest of dicta, and
form no part of today’s holding. Thus, as far as this particular
statute is concerned, counsel remain free to argue
JUSTICE STEVENS’ view (and to explain why it does not
overrule Clark v. Martinez, supra). They should be
warned, however: Not only do the Justices joining this
opinion reject that view, but so also (apparently) do the
Justices joining the principal dissent. See post, at 2, 17.

Justice Stevens responds, in effect, Not so fast:

In what can only be characterized as the “purest of dicta,” the plurality speculates about the stare decisis effect of our judgment and interprets my conclusion as resting on the ground that “ ‘proceeds’ means ‘profits’ when there is no legislative history to the contrary.” Ante, at 16. That is not correct; my conclusion rests on my conviction that Congress could not have intended the perverse result that the dissent’s rule would produce if its definition of “proceeds” were applied to the operation of an unlicensed gambling business. In other applications of the statute not involving such a perverse result, I would presume that the legislative history summarized by JUSTICE ALITO reflects the intent of the enacting Congress. See post, at 2 and n. 1 (opinion ofALITO, J.). Its decision to leave the term undefined is consistent with my view that “proceeds” need not be given the same definition when applied to each of the numerous specified unlawful activities that produce unclean money. Clark v. Martinez, 543 U. S. 371 (2005), poses
no barrier to this conclusion. In Martinez there was no compelling
reason—in stark contrast to the situation here—to believe that Congress intended the result for which the Government argued.

Justice Alito, for his part, has this to say about the precedential effect of the various opinions:

Fortunately, JUSTICE STEVENS’s opinion recognizes that
the term “proceeds” “include[s] gross revenues from the
sale of contraband and the operation of organized crime
syndicates involving such sales.” Ante, at 2–3 (opinion
concurring in judgment). [FN: In light of the plurality opinion’s discussion of “the stare decisis effect of JUSTICE STEVENS’ opinion,” ante, at 16, it must be noted that five Justices agree with the position taken by JUSTICE STEVENS on the matter discussed in the preceding sentence of the text.] I cannot agree with JUSTICE STEVENS’s approach insofar as it holds that the meaning of the term “proceeds” varies depending on the nature of the illegal activity that produces the laundered funds, but at least that approach preserves the correct interpretation of the statute in most of the cases that were the focus of congressional concern when the money laundering statute was enacted.