This column has previously joined the widespread prognostication about what the advent of the Supreme Court's new majority may mean for the evolution of the law. See Anello and Albert, "Implications of a More Conservative Supreme Court for White-Collar Practitioners," New York Law Journal (Oct. 8, 2020). Although it is too early to render judgment, the court's June 3, 2021 decision in Van Buren v. United States, 141 S. Ct. 1648 (2021), one of Justice Amy Coney Barrett's first majority opinions and her first addressing criminal law as a member of the court, provides some clues. In narrowly construing a provision of the Computer Fraud and Abuse Act of 1986 (CFAA) to avoid criminalizing "a breathtaking amount of commonplace computer activity," Justice Barrett's opinion likely will be welcomed by those concerned about overcriminalization and untethered prosecutorial discretion in the federal system.

Indeed, the Van Buren decision well fits into a pattern of the court's modern criminal law jurisprudence that, while purporting to use only traditional tools of statutory interpretation and to eschew policy judgments, nevertheless appears motivated by concerns about the ever-expanding reach and severity of federal criminal law. Over the past decade, the Supreme Court increasingly has questioned the Justice Department's broad interpretations of various criminal statutes and their application to novel factual scenarios outside the perceived heartland of conduct at which the laws were aimed. Although in certain instances the court has tackled the overbreadth issue directly—for example, holding that the Armed Career Criminal Act's "residual clause" was void-for-vagueness in Johnson v. United States, 576 U.S. 591 (2015)—more often, the court takes a subtler approach of adopting less-than-obvious narrow interpretations of criminal statutes that appear broadly written. Nevertheless, the court tips its hand by injecting into its mix of textualist tools policy arguments regarding the absurd consequences that could result from the broad interpretations urged by the government. Indeed, one important thread that runs through these decisions is the court's disavowal of the notion that "prosecutorial discretion" provides any meaningful check on the excessive breadth of criminal statutes.