The Supreme Court released its opinion in Lockhart v. United States, where
Petitioner Avondale Lockhart pleaded guilty to possessing child pornography in violation of 18 U. S. C. §2252(a)(4). Because Lockhart had a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend, his presentence report concluded that he was subject to the 10-year mandatory minimum sentence enhancement provided in §2252(b)(2), which is triggered by, inter alia, prior state convictions for crimes “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Lockhart argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction did not trigger the enhancement. Disagreeing, the District Court applied the mandatory minimum. The Second Circuit affirmed.
More abstractly, as John Brewer wrote to me, the case depended on the question of "whether the phrase 'relating to A, B, or C involving D' covers an A that doesn't involve a D". And the Supremes decided, a vote of 6-2, that it does.
The court's reasoning leaned heavily on "the rule of the last antecedent":
The “rule of the last antecedent,” a canon of statutory interpretation stating that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows,” Barnhart v. Thomas, 540 U. S. 20, 26, clarifies that the phrase “involving a minor or ward” modifies only the immediately preceding noun phrase “abusive sexual conduct” and that the phrases “aggravated sexual abuse” and “sexual abuse” are not so restricted. The rule “can . . . be overcome by other indicia of meaning,” ibid., but §2252(b)(2)’s context reinforces its application in this case.
The statute in question is 18 U.S. Code § 2252 – Certain activities relating to material involving the sexual exploitation of minors, and clause (b)(2) reads
Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both, but if any visual depiction involved in the offense involved a prepubescent minor or a minor who had not attained 12 years of age, such person shall be fined under this title and imprisoned for not more than 20 years, or if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.
It's always been a source of wonder to me that (law) code, on which so much depends, is written without any means of bracketing to specify scope, and without even an unambiguous set of conventions for default binding in cases where scope is not explicitly marked. If the universe suddenly shifted so that computer code was written this way, modern society would disintegrate in a swirl of chaos, as every computer program began to behave in randomly unintended ways.
Back in November, Evan Lee suggested that Antonin Scalia's contributions to the oral argument hinted at a vote in the other direction ("Argument analysis: Court appears fractured in child pornography mandatory minimum case", SCOTUSblog 11/4/2015):
Justice Antonin Scalia made it clear that he thinks this “battle of the canons” results in a draw, and therefore that the rule of lenity should tip the case toward Lockhart. “[W]e’ve been discussing this dueling canons and so forth,” he said to Assistant to the Solicitor General Ann O’Connell, who argued on behalf of the federal government. “My goodness, I have no – I have no assurance what the right answer is. But I know that somebody could read this and think that it means what [Lockhart] says it means. And if that’s the case, it seems to me the rule of lenity comes into play.”
But Lee also thought that Justice Anthony Kennedy was leaning in the same direction. He concluded that
In the end, Lockhart’s fate may be determined by Scalia’s ability to create enough doubts about the clarity of the text in the minds of Thomas and Ginsburg. If their doubts rise to a sufficiently great level, they could be persuaded to decide the case on the basis of the rule of lenity. Kennedy may already be there, and, although Kagan does not seem to think this is an appropriate case for lenity, she may be persuaded on the “series qualifier” canon.
If Lee was even close to being on the right track, this case's outcome supports the view that Antonin Scalia's death might have a much larger effect than just his individual vote.