Concurring Opinions » Anita Krishnakumar

The Roberts Court (Thus Far) and the Rule of Lenity

Anita Krishnakumar — Sun, 15 Nov 2009 20:37:41 +0000

In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes.

Here is what I found:

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.

The two justices most likely to reference the rule of lenity (i.e., who exhibited the highest rates of reference to the rule over the relevant time period) were Justices Scalia and Stevens, each of whom referenced or joined an opinion referencing the rule in four¹ of the twenty-five cases. Justice Ginsburg exhibited the next-highest rate of reference to the rule, invoking it or joining an opinion that invoked it in three² of the cases; Justice Souter invoked or joined an opinion invoking the rule in two³ of the cases, while Justices Breyer, Roberts, and Thomas did so only once.⁴ Justices Alito and Kennedy did not reference or join an opinion referencing the rule of lenity in a single case during this time period.

Upshot: Eskridge’s, Frickey’s, and Garrett’s finding that the rule of lenity plays a role in just over one-fourth of the Court’s criminal statutory cases seems to be holding steady in the Roberts Court. The Court may be shifting ever-so-slightly to a more equal rate of interpretations that favor the government versus the defendant, though it is too early and the sample size is too small to tell. Perhaps most interestingly, the rule of lenity seems to be losing steam as an interpretive aid: In the past several Supreme Court terms, it almost always has been cited by justices in dissent—even in the fourteen cases in which the Roberts Court interpreted the statute to favor the defendant, it rarely (one time) relied on the rule of lenity to reach its result. In light of this trend, it may be worth asking whether this longstanding rule of statutory construction is nearing its deathbed?

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1. See James v. United States (Scalia and Stevens, dissenting); United States v. Santos (Scalia plurality opinion, Stevens concurring opinion); Begay v. United States (Scalia concurring opinion); United States v. Rodriquez (Stevens joining Souter dissenting opinion); United States v. Hayes (Scalia joining Roberts dissent); Dean v. United States (Stevens dissent).

2. See James (joined dissent), Santos (joined plurality), Rodriquez (joined dissent).

3. See Santos (joined plurality), Rodriquez (authored dissent).

4. Justice Breyer authored a dissenting opinion citing the rule in Dean v. United States; Justice Roberts authored a dissenting opinion invoking the rule in Rodriquez; and Justice Thomas joined the relevant portionf of the plurality opinion in Santos.

Can There Be An “Undeclared” Canon of Statutory Interpretation?

Anita Krishnakumar — Thu, 12 Nov 2009 00:26:42 +0000

How do canons of statutory interpretation come into being? What qualifies a court’s method of reasoning in a statutory case as a rule or canon of construction? Last week, I wrote about the Supreme Court’s use of the passive voice as an interpretive guide in two somewhat recent criminal cases. Does this mean that we now have a “passive voice” canon of statutory interpretation, at least in criminal cases?

In a recent article, The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon (forthcoming, 51 William & Mary Law Review __ (2009))—in which I argue that the Supreme Court quietly has employed a “unique national institution canon” to give preferential legal treatment to certain special/unique American entities (Christian churches, baseball, railroads, tobacco, Native Americans)—I touch on this question of how different interpretive methodologies become canons or rules of statutory construction.

One position might be that any time the Supreme Court, as the highest court in the land, uses an interpretive methodology, that methodology becomes a rule or canon of statutory construction. This seems to be the view taken by William Eskridge, Philip Frickey, and Elizabeth Garrett in their Legislation casebook, which contains an appendix compiling “The Supreme Court’s Canons of Statutory Interpretation.” More generally, I would suggest that interpretive methodologies rise to the level of canons of statutory construction when they can lay claim to one or more of the following: (1) frequent use by the Supreme Court; (2) longevity, as when the methodology originated in English courts or long has been listed in Sutherland’s definitive treatise on Statutes and Statutory Construction;(3) grounding in some fundamental tenet of the American legal system (e.g., the Constitution); or (4) fostering consistency with longstanding judicial treatment of particular words or subject matters.

The expressio unius maxim, for example, gained its canonical status primarily through longevity—it is a Latin maxim used often by the English courts and is prominent in Sutherland’s—and also has been used frequently by the Supreme Court. The Rule of Lenity similarly derives its authority from its longevity (Justice Scalia has defended the canon on the grounds that it “is almost as old as the common law itself”) and from its basis in the fundamental constitutional due process principle that criminal laws should give fair notice of the behavior that is outlawed. Interpretive techniques with a shorter historical pedigree, such as the whole act and whole code rules, have achieved canonical status because they promote the consistent treatment of statutory words, phrases, sections, and subject matter. And one of the newest additions to the statutory interpretation canon, the federalism clear statement rule, earned its stature through frequent Supreme Court use coupled with a grounding in the fundamental constitutional principle of federalism.

In my view, the basic thread connecting all of these paths to canonical status is established convention. Whether their authority derives from pedigree, frequent use, constitutional authority, or precedential weight, the interpretive canons are treated as such because they are believed to reflect rules or norms with which legislators are familiar. The “canons” are given special status, rather than treated as ordinary legal argument styles or logical inferences, because they (are believed to) reflect the background understandings against which legislators draft statutory language and against which judges, lawyers, and those affected by a statute are meant to read that language.

By this reasoning, the Court need not label an interpretive methodology a “canon” of statutory interpretation for it to be considered such. Indeed, the Supreme Court routinely relies on well-known canons such as the “dog that didn’t bark” canon, the expressio unius maxim, and the whole act rule without identifying the canon on which it is relying, or even indicating that the argument it is making is based on an established canon of construction. See, e.g., Scheidler v. N.O.W., 547 U.S. 9, 20 (2006) (dog that didn’t bark); Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Ed., 550 U.S. 81, 88 (2007) (dog that didn’t bark); Rowe v. New Hampshire Motor Transport Ass’n, 128 S.Ct. 989, 997 (2008) (expressio unius); Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 298 (2006) (expressio unius); LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S.Ct. 1020, 1025-26 (2008) (whole act rule); Hinck v. United States, 550 U.S. 501, 506 (2007) (whole act rule). Thus, I submit that the nature and extent of the Supreme Court’s reliance on particular interpretive methodologies—rather than its act of giving a label to the methodology it is using—should drive our analysis of whether an interpretive methodology rises to the level of an established rule or canon of statutory construction.

The Passive Voice in Statutory Interpretation

Anita Krishnakumar — Mon, 02 Nov 2009 20:38:41 +0000

Thanks to Dan et al. for the opportunity to guest-blog this month. For my first guest post, I want to highlight a little-noticed tool of statutory construction that has reared its head in a handful of recent Supreme Court decisions: inferences based on Congress’s use of the passive voice in criminal statutes. I first noticed Supreme Court reliance on the passive voice to construe a criminal statute in Justice Kennedy’s dissenting opinion in Jones v. United States (1999). Jones involved construction of the federal carjacking statute, 18 U.S.C. §2119, which then read as follows:

“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”

Defendant Jones had participated in a carjacking with two other men. While Jones and one of the other men held up the victims, a third man had stuck his gun in one of the victims’ ears and later struck that victim on the head. The issue in the case was whether clauses (1), (2) and (3) of §2119 are sentencing provisions, specifying punishment/sentencing possibilities for the offense set forth in the first paragraph, or whether they are three different offenses (one being a carjacking offense, two being carjacking + serious bodily injury, and three being carjacking + serious bodily injury resulting in death). The classification mattered because the indictment did not charge any of the facts relating to bodily injury mentioned in clauses (2) or (3) and the jury instructions defined the elements of the government’s burden of proof with reference only to the first paragraph of §2119. If clauses (2) and (3) were deemed sentencing provisions, this would not matter, and Jones could be sentenced to 25 years based on the serious bodily injury caused to one of the victims; if clause (2) and (3) were read as separate offense provisions containing new elements, then the government’s failure to plead these elements in the indictment and prove them before the jury would preclude it from seeking the 25-year penalty against Jones.

In a 5-4 opinion, the Supreme Court concluded that “the fairest reading of §2119” was to treat the serious bodily harm provision as an element of a separate offense, rather than as a mere sentencing enhancement. Justice Kennedy, joined by three other dissenters, disagreed—relying in part on the fact that the statute “uses the active voice in the main paragraph and the passive voice in clauses (2) and (3).” While recognizing that the rule was not an absolute one, Justice Kennedy argued that “[i]n the more common practice, criminal statutes use the active voice to define prohibited conduct”— and the passive voice when listing sentencing factors. This inference based on the statute’s use of the “passive voice” certainly did not do all, or even the bulk, of the work in leading Justice Kennedy (or the other dissenters) to the conclusion that clauses (2) and (3) should be read as sentencing enhancements, but the dissenters did emphasize it to bolster/corroborate their reading of the statute.

More recently, in Dean v. United States, the Supreme Court majority relied on Congress’ use of the passive voice to bolster its interpretation of a firearms enhancement provision in 18 U.S.C. §924(c)(1)(A). That statute contains a three-part structure similar to the carjacking statute at issue in Jones:

“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

This time, there was no dispute over whether clauses (ii) and (iii) were sentencing provisions or separate offense provisions—the parties agreed that they were sentencing provisions. The disagreement instead was over whether clause (iii) contains a requirement that the defendant intend to discharge the firearm. (Defendant Dean had carried a gun while robbing a bank; as he was collecting money from a teller’s drawer, the gun accidentally discharged.) The Court, in a 7-2 opinion, held that clause (iii) did not contain an intent requirement. Justice Roberts’ opinion for the Court began by noting that the text of clause (iii) “does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation.” The opinion went on in the next paragraph to note that Congress’ use of the passive voice “further indicates” that the clause does not require proof of intent because the “passive voice focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor’s intent or culpability. It is whether something happened—not how or why it happened—that matters.”

These two Supreme Court references to the passive voice as interpretively significant—employed a decade apart—appear to be isolated. A quick Westlaw search reveals only four other post-1944 Supreme Court statutory opinions that even mention the passive voice, and those do so only to observe that Congress’s use of the passive voice leaves the statute’s meaning indeterminate. See United States v. Wilson, Watson v. United States, Gladstone Realtors v. Village of Bellwood, and E. I. du Pont de Nemours & Co. v. Train.

So, what to make of the Court’s “passive voice” references in Jones and Dean? It is hard to tell. If we can generalize from two cases, the Supreme Court seems most likely to give interpretive weight to a statute’s use of the passive voice when that use is repeated throughout a statutory provision (e.g., in multiple clauses), perhaps suggesting a deliberate structural choice. Moreover, as with most grammar canons, the Court seems likely to employ passive-voice-based inferences only to bolster or corroborate a statutory interpretation reached through other interpretive canons and tools. Upshot: For counsel seeking to convince the Court to interpret a criminal statute in a particular direction, it is worth making passive-voice based arguments favoring a particular construction—but briefs are best off leading with other interpretive tools and throwing the passive voice argument in as a corroborative device.

Confusion in United States v. Santos

Anita Krishnakumar — Fri, 06 Jun 2008 16:36:20 +0000

The Supreme Court this past Monday handed down its decision in United States v. Santos, a case that turns on whether the phrase “proceeds of some form of unlawful activity” in the federal money-laundering statute, 18 U.S.C. §1956(a)(1), means “profits” (net income) from the unlawful activity or simply any “receipts” (payments) from the unlawful activity. (The unlawful activity at issue in the case was illegal gambling). In a closely divided ruling, the Court opted for the “profits” construction. But discerning the precedential effect of the Court’s ruling is a little like trying to make sense of Alice in Wonderland. The Justice’s opinions in the case are of the by-now-familiar fractured variety: Justice Scalia authored the plurality opinion, joined by Justices Souter, Ginsburg, and Thomas — except for Part IV, in which Justice Thomas did not join; Justice Stevens concurred in the outcome reached by the plurality, but not in its reasoning; Justice Alito authored a dissenting opinion joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer; and Justice Breyer issued a separate dissent joined by no one else.

Significantly, Part IV of the plurality opinion, which Justice Thomas refused to join, focuses entirely on the plurality’s differences with Justice Stevens and ends by seeking to characterize “the stare decisis effect of Justice Stevens’ opinion” — given that his vote is necessary to the outcome of the case. Justice Stevens’ opinion parts company with the plurality because Stevens refuses to construe the word “proceeds” in the federal money laundering statute always to mean “profits” from the underlying predicate crime. Rather, he argues that “proceeds” can mean either “profits” or “receipts,” depending on the unlawful activity at issue. Characteristically for Justice Stevens, the determinative factor is Congress’ intent regarding the particular unlawful activity at issue. In the case of illegal gambling, however, Justice Stevens is unable to discover any specific legislative intent about whether “proceeds” was meant to cover merely “profits” or also “receipts.” So, faced with (1) “a lack of legislative history speaking to the definition of ‘proceeds’ when operating a gambling business is the ‘specified unlawful activity’” and (2) his “conviction” that “Congress could not have intended” the four-fold sentence enhancement (from 5 to 20 years) that would result from treating the use of gambling receipts to pay the expenses of operating an illegal gambling business as a separate offense (money laundering) from the operation of the gambling business itself (underlying offense), Justice Stevens agrees with the plurality that the Rule of Lenity should tip the scales in favor of interpreting “proceeds” to mean “profits” in this case. Got that?

Given that Justice Stevens’ vote was necessary to the outcome in the case, his in-between opinion leaves considerable doubt as to the precise holding of the case. Justice Scalia, joined by Justices Souter and Ginsburg, argues that Justice Stevens’ construction narrows the Court’s holding down to: “Proceeds” means “profits” when there is no legislative history to the contrary. But only three Justices accept this characterization of the case’s precedential holding! Justice Thomas pointedly, though silently, refuses to join it. Justice Stevens, in a footnote, disavows this characterization, emphasizing his belief that Congress could not have intended the perverse result (four-fold enhancement) that would follow if “proceeds” were read to include “receipts” from the operation of an unlicensed gambling business. Justice Alito’s dissent, joined by Justices Kennedy, Breyer, and Chief Justice Roberts, likewise takes issue with the plurality’s characterization — arguing that five Justices (presumably counting Justice Stevens) actually agree that the term “proceeds” includes gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales.

So which is it? Does “proceeds” mean “profits” when there is no legislative history to the contrary – and possibly (to be decided another day) even if there is? Or does “proceeds” mean “profits” only when a perverse sentencing disparity exists between the underlying offense and the money laundering penalty? Or is the upshot of the ruling that “proceeds” always includes gross revenues from the sale of contraband? I frankly have no idea, though I suspect that the only reliable characterization of the Court’s holding is that when the underlying predicate offense is illegal gambling, “proceeds,” for money-laundering purposes, means “profits.” That, unfortunately, does not give much guidance to lower courts, defense counsel, or prosecutors seeking to determine whether 18 U.S.C. §1956 is triggered in the context of other predicate offenses. Which conundrum almost leaves me wondering whether we shouldn’t require the Court, in cases where it issues fractured plurality opinions, to provide a separate statement joined by at least five Justices setting forth the case’s holding for future reference?

The “Mischief Rule” Rule and the VRA in Riley v. Kennedy

Anita Krishnakumar — Fri, 30 May 2008 08:01:48 +0000

Election law experts have been quick to speculate about what the Supreme Court’s decision in Riley v. Kennedy, handed down this past Tuesday, means for the future of Section 5 (the preclearance provision) of the Voting Rights Act (VRA). Rick Pildes argues that the decision reflects a trend, which began in the 1990s, of “greater skepticism from the Court” “regarding the boundaries of the special coverage regime under Section 5 of the Act.” Rick Hasen worries that the decision bodes ill for the Court’s upcoming review of the constitutionality of the recently-renewed Section 5 in the NAMUDNO case. But what is most interesting to me, as a matter both of statutory interpretation and of election law, is Part IV of Justice Stevens’ dissenting opinion, which employs a classic Hart & Sacks Legal Process approach —the “Mischief Rule”— to argue that Section 5 preclearance should be required in a case such as this.

Before delving into this most interesting argument by Justice Stevens, a little background: VRA §5, of course, subjects certain “covered jurisdictions” (which earned that designation through a history of suppressing minority voting rights) to a presumption of bad faith behavior in election administration. It operates by freezing in place the election administration procedures in such covered jurisdictions, and requiring that such jurisdictions obtain “preclearance” from either the Justice Department (DOJ) or the District Court for the District of Columbia before they may make any changes to voting/election procedure. The typical preclearance lawsuit thus tends to involve a proposal by a state entity to implement some new change to election procedure in a covered jurisdiction, and a challenge by a minority group arguing that the proposed change will have the effect of disenfranchising minority voters. Riley turns that classic procedural posture on its head: In 1985, Alabama passed a law adopting a new election practice (changing the procedure for filling midterm vacancies on the Mobile County Commission from gubernatorial appointment to special election), obtained the preclearance required by Section 5, and held an election (in 1987). Soon thereafter, the Alabama Supreme Court invalidated the law under which the election took place on the ground that it violated the Alabama Constitution. When the next midterm vacancy arose (in 2005), the governor sought to fill it by appointment, prompting litigation. The question presented before the Supreme Court = Whether Alabama must obtain fresh preclearance in order to reinstate the election practice —i.e., gubernatorial appointment— that was in place before the special election procedure, ultimately struck down by the Alabama Supreme Court, was enacted? Does reinstatement of the gubernatorial appointment procedure constitute a change/abandonment of the special election procedure used in 1987, and thus require Section 5 preclearance?

The Supreme Court, in an opinion written by Justice Ginsburg, and joined by every Justice except Justices Stevens and Souter, answers both of these questions in the negative. The invalidated 1985 law, the Court holds, never gained “force or effect” for Section 5 purposes, and so the State’s reversion to its prior practice of gubernatorial appointment did not rank as a “change” requiring preclearance. Underlying the Court’s opinion is an overwhelming respect for the judgment by “Alabama’s highest court” declaring the 1985 Act and its special election procedure invalid under the Alabama State Constitution, and a conscious effort to limit the ruling to the peculiar facts of this case.

So, at first blush, the Court’s opinion does not seem so terribly ominous. After all, the way the Court paints the picture, the facts of Riley seem to fall at the outer-boundaries of Section 5’s reach. Until, that is, one reads Justice Stevens’ dissent. The dissent makes clear that the way the Court paints the picture is itself worrisome. Leaving aside arguments over the proper application of relevant precedents, the Court ignores two powerful canons of statutory construction that point decidedly in favor of requiring preclearance in this case. First, it neglects the substantive canon (background norm) favoring liberal construction of Section 5 of the VRA (See Allen v. State Board of Elections, noting Congress’ intent to give Section 5 the “broadest possible scope,” reaching “any state enactment which altered the election law of a covered State in even a minor way”).

Second, the Court ignores the fact that election law changes worked by state courts fall squarely within the “Mischief” that the VRA was designed to correct. Although Justice Stevens does not explicitly reference the Hart and Sacks “Mischief Rule” in his dissent, it is very much a mischief argument that he is making when he insists that deference to state courts is improper in construing the VRA, because discrimination against minority voters by state courts was part of the “history of voting practices” that the VRA originally was designed to remedy. In fact, Justice Stevens’ dissent provides a classic mischief-style history lesson in the state of affairs that led to enactment of the VRA — recounting how the Alabama Supreme Court not only (1) imposed procedural obstacles in the way of minority litigants seeking to challenge local election officials’ discriminatory registration procedures, but (2) drafted and promulgated a complex registration questionnaire designed to block the registration of African-American voters. Justice Stevens’ history lesson shows that “prior to the VRA, the Alabama Supreme Court worked hand-in-hand with the Alabama Legislature to erect obstacles to African-American voting,” and makes clear that deference to state courts in covered jurisdictions thus is as out of step with Section 5 as is deference to state election boards or legislatures. In other words, the scenario at issue in Riley falls much closer to the core of Section 5 than the majority would have us think.

Why, then, this collective amnesia on the part of seven members of the Roberts Court? Well, the fear behind election law experts’ lamentations is that it is not so much amnesia that is at work, but rather a deliberate conclusion by a majority of the Justices that the original mischief the VRA was designed to remedy no longer is relevant in construing the scope of Section 5. Justice Stevens’ dissent tellingly notes that he “do[es] not mean to cast aspersions on the current members of the Alabama Supreme Court”—i.e., he does not mean to suggest that their invalidation of the 1985 law was motivated by a desire to disfranchise minority voters. Under traditional principles of statutory construction (and VRA construction in particular), he does not need to suggest anything of the kind; the Alabama Supreme Court’s history of discriminating against minority voters is enough to relieve it of any entitelement to deference from federal courts and to bring election law changes worked by its decisions within Section 5’s preclearance regime. The fact that seven members of the Court completely ignore this principle suggests that they believe the original impetus behind Section 5 (the mischief Congress sought to correct) does not matter going forward — it is almost as if the majority is engaging in a “dynamic updating” of the VRA, taking current conditions, rather than time-of-enactment conditions, into account. And if that is the case, then election law experts are correct to worry about the future of Section 5 and its preclearance mechanism (particularly given that the findings upon which Congress based its 2006 renewal of the VRA harken back to data from 1964).

A Reverse Clear Statement Rule?

Anita Krishnakumar — Tue, 20 May 2008 18:42:03 +0000

Last week the Supreme Court issued an opinion in a seemingly straightforward statutory interpretation case, Gonzalez v. United States. At issue was whether the Federal Magistrates Act (FMA) permits magistrate judges (rather than Article III district court judges) to preside over voir dire and jury selection in a felony criminal trial if defense counsel consents to the arrangement, but absent express consent from the defendant himself. Section 636(b)(3) of the FMA states that: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” The Court concluded that the statutory language and relevant precedents (Gomez v. United States and Peretz v. United States) did not bar delegation of felony jury selection and voir dire to a magistrate. But more interesting, in my view, than the outcome reached by the Court is the argument it brushed aside with little fanfare in getting there: constitutional avoidance.

It is a well-worn if not-exactly-well-loved canon of statutory construction that when a statute is susceptible of two interpretations, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the Court’s duty is to adopt the interpretation that steers clear of constitutional difficulties. The petitioner in this case argued that the decision to have a magistrate judge rather than an Article III judge preside at jury selection is a fundamental choice, involving a defendant’s fundamental rights, and that interpreting the FMA to authorize waiver of this choice without the express consent of the defendant raised a question of constitutional significance. Given the canon of constitutional avoidance, he pressed the Court to require an explicit personal statement of consent before a magistrate judge may be permitted to preside over felony jury selection. The Court, however, quickly waived away this argument, insisting that no serious constitutional is raised by such a delegation of authority to a magistrate, absent a defendant’s express consent, because: (1) as petitioner conceded, a magistrate judge is capable of competent and impartial performance of the judicial tasks involved in jury examination and selection; (2) the Article III district judge, insulated by life tenure and irreducible salary, is waiting in the wings, fully able to correct errors; (3) requiring the defendant to consent to a magistrate judge by way of an on-the-record personal statement is not dictated by precedent; and (4) such a requirement would burden the trial process. In other words, the Court relied on policy arguments to trump petitioner’s claim that felony defendants have a constitutional right to have an Article III judge preside over their trials, waivable only by the defendant personally.

This move stands in marked contrast, in my opinion, to the Roberts Court’s opinions in Rapanos v. United States and Gonzalez v. Carhart, both of which relied, at least in part, on the avoidance canon. In Rapanos, for example, the Court rejected the Army Corps of Engineers’ interpretation of the term “navigable waters” in the Clean Water Act, in part because the Corps’ expansive definition “press[ed] the envelope of constitutional validity” by eliminating “virtually all” state and local water resource planning — thereby raising serious federalism concerns. Given the federalism issues created by the Corps’ regulation, the plurality held that a clearer statement was required, in the statutory text, demonstrating Congress’ intent to let the federal agency intrude upon state and local governments’ authority. The plurality’s use of the avoidance canon—clear statement rule one-two punch in Rapanos was particularly noteworthy because it helped lead to the overturning of an Army Corps regulation that had been in place, unaltered by Congress, for 30 years. Similarly, in Carhart, the majority argued that the federal partial birth abortion statute should be construed NOT to cover the prototypical D & E procedure used in many abortions, noting that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”

What is striking to me is that whereas Rapanos and Carhart both were closely divided (5-4) cases, in this case only one Justice—Justice Thomas—took seriously petitioner’s argument that the government’s construction should be avoided because it might deprive felony defendants of an important constitutional right. (Thomas’s dissent examined the Framers’ views on independent judges and their reasons for establishing Article III judges, protected by life tenure and a guaranteed salary). Perhaps even more striking, Justice Scalia, who authored the plurality opinion in Rapanos, seems almost to argue for a reverse-clear-statement-rule in his concurring opinion in Gonzalez. Indeed, his concurrence bluntly states: “I would leave this matter of placing reasonable limits upon the right of agency in criminal trials to be governed by positive law, in statutes and rules of procedure. I would hold that petitioner’s counsel’s waiver was effective because no rule or statute provides that the waiver come from the defendant personally.” In other words, Justice Scalia would flip the avoidance-clear statement presumption in the context of criminal defendants’ waiver of their constitutional rights at trial. He would make it the default that all of a defendant’s rights (save the right to counsel) could be waived by defense counsel, absent defendant’s personal consent — and the only way around this default would be through a clear statement, in a particular statute or rule of criminal procedure, requiring the defendant’s express personal consent to waive a particular right. Talk about a clear statement rule that would turn protection of a defendant’s constitutional rights on its head! Instead of reading statutes to avoid constitutionally difficult constructions, now the presumption would be that no constitutional violation has occurred. And only a clear statement in the statutory text could reverse the presumption. This rule certainly would have the advantage of providing a bright-line—no doubt the source of its attractiveness to Justice Scalia—but it seems a little inside-out and upside-down to me.

Rehnquist Parody Uncovered

Anita Krishnakumar — Thu, 15 May 2008 22:42:23 +0000

More on the statutory interpretation front to come soon, but in the meantime, I want to direct readers’ attention to an entertaining article by my colleague, John Barrett, titled, A Rehnquist Ode on the Vinson Court (Circa Summer 1953). The article, which is soon to be published in a forthcoming issue of Green Bag, features a recently-uncovered parody of a song from Gilbert & Sullivan’s “Mikado,” penned by William Rehnquist around the time he served as a law clerk to Justice Robert Jackson on the Vinson Court. Barrett, a well-known Jackson scholar, uncovered the parody in Jackson’s papers at the Library of Congress. As Barrett explains at the outset of the article:

The late William H. Rehnquist had an active, sometimes irreverent sense of humor, a love of music and strong, if often carefully guarded, opinions on many topics, including Supreme Court justices. This article publishes for the first time a Rehnquist composition that dates back to his seventeen-month Supreme Court clerkship with Justice Robert H. Jackson during 1952 and 1953. The document is a typewritten spoof of Gilbert and Sullivan lyrics. Rehnquist, who was in his late twenties when he banged out this ditty, gave it to Jackson. The Justice filed it without written comment, and it has been sitting in his [Jackson’s] files for more than fifty years.

The Rehnquist lyrics demonstrate his skill as a writer and a parodist. They also document his knowledge of 1950s Supreme Court justices’ gripes about and low regard for some of their judicial brethren. Rehnquist’s Gilbert and Sullivan parody focuses on the plethora of separate opinions that the 1950s Supreme Court Justices habitually produced, and on one subject that was, to Justice Jackson, particularly galling: Chief Justice Fred M. Vinson’s preoccupation, includingduring his working hours at the Supreme Court, with baseball.

Barrett’s article, which provides valuable annotations and historical context illuminating the subtext of Rehnquist’s parody, is a highly recommended read!

Predictions for United States v. Rodriguez

Anita Krishnakumar — Thu, 08 May 2008 22:55:12 +0000

Many thanks to Doug Berman over at Sentencing Law and Policy for his kind words about my last post discussing Begay v. United States. Doug ended his post by noting that “the only thing missing” from my analysis was an assessment of what the Court’s ruling in Begay might mean for the soon-to-be-decided United States v. Rodgriguez. Taking up Doug’s gently-placed gauntlet, here are my thoughts on the likely outcome of Rodriguez, as informed by the Justices’ voting/reasoning in Begay:

First, a little Background: Rodriguez involves clause (i) of the same Armed Career Criminals Act (“ACCA”) sentencing enhancement that was at issue in Begay (and in James). 18 U.S.C. §924(e)(2)(B). Whereas clause (ii) of that section imposes the enhancement if the defendant previously has been convicted of three “violent felonies,” clause (i) triggers the enhancement if a defendant previously has been convicted of a “serious drug offense” — defined as “a state drug trafficking offense for which a maximum term of imprisonment of 10 years or more is prescribed by law.” 18 U.S.C. §924(e)(2)(B)(i). At the time when he committed his latest offense, Rodriguez had three prior convictions in Washington State for delivery of a controlled substance. Under Washington State law, the maximum term of imprisonment for this offense is 5 years for first-time offenders, and 10 years for those committing the offense for a second time (or third, or fourth, etc. time). The statutory interpretation question thus becomes: Whether a state drug trafficking offense qualifies as a “serious drug offense” triggering the §924(e)(2)(B)(i) enhancement if the maximum term of imprisonment starts out at 5 years for first-time offenders, but rises to 10 years for repeat offenders.

Based on their votes in Begay (and James) construing clause (ii) of §924(e)(2)(B), and on their questions at oral argument, here are my speculations (and I want to emphasize that these are just speculations) as to how the Justices are likely to vote in Rodriguez:

1. Justices Breyer, Kennedy, and Roberts: For the government. Washington State’s 10-year maximum term for repeat offenders qualifies Rodriguez’s crime for sentence enhancement under §924(e)(2)(B)(i) of the ACCA. Famous last words, but I’m fairly confident in this particular prediction. In their majority opinion in Begay, these three Justices placed significant weight on the ACCA’s purpose of punishing recidivists (even noting that “Career Criminals” is in the statute’s title!) and made a point of distinguishing the, in their view, accidental-drunk-driver (whatever the merits of that characterization) from the “violent,” “purposeful,” and “aggressive” type of career criminal whom they believe the ACCA is designed to deter/punish. One suspects that repeat drug traffickers will fall on the opposite side of the divide from drunk drivers in these three Justices’ estimation. Moreover, the comments made by each of these Justices at oral argument point tellingly in favor of the government’s position. Justice Kennedy, for instance, expressed the view that a repeat drug trafficker may well cause greater injury to the State —and therefore be said to commit a more serious offense than a one-time offender— by, for example, creating a network of distributors that will cost the state greater resources to eradicate. Justice Breyer similarly argued that one who commits a drug offense for the second, third, or fourth (or more) time behaves more culpably than a first-time offender. And Chief Justice Roberts observed that it would make sense for Congress, in crafting a statute designed to address the “very serious problem of recidivism,” to consider an offense more serious when committed by a repeat offender. He also seemed to buy into the government’s common sense/absurd result argument that it is a “verbal embarrassment” to say that the maximum term for an offense is 5 years but then to allow some defendants to be sentenced to 10 years for the offense.

2. Justice Scalia: For the defendant. Justice Scalia likely will conclude that it is at best unclear whether the ACCA enhancement applies to a state drug offense that carries a maximum term of 5 years for a first-time offender, but a maximum term of 10 years for repeat offenders. Given this ambiguity, he is likely to invoke the Rule of Lenity —perhaps his favorite substantive canon of construction— to argue that the benefit of the doubt should go to the defendant. Indeed, Justice Scalia pointedly defended the Rule of Lenity as applicable to sentencing statutes at oral argument. (This was after Chief Justice Roberts raised the classic counterargument that the Rule applies only in cases where the criminality/unlawfulness of the defendant’s conduct is at issue (when the conduct is malum prohibitum), but not when the unlawful nature of the defendant’s conduct is obvious (it is malum in se) and the only question is how severely the law at issue punishes such conduct.) Justice Scalia also likely will emphasize the fact that the text of the ACCA enhancement refers to a “serious drug offense” not to a “serious drug offender.” As he astutely noted at oral argument, the fact that a defendant has committed multiple drug offenses does not make his subsequent offense(s) “more serious offenses”; it only makes the defendant himself a “more culpable offender.”

3. Justices Alito and Souter. For the defendant, I think. My guess is that these two text-focused Justices will join Justice Scalia’s construction of the statute based on the facts that (1) the statutory text hangs the enhancement on the seriousness of the drug “offense” rather than of the drug “offender”; and (2) the government has conceded, at least in the context of this case, that the defendant’s recidivism is not an element of the offense itself. (Note: This last issue about whether recidivism effectively is an element of the offense seemed to trouble Justice Alito at oral argument, so his vote is a little difficult to predict).

4. Justices Ginsburg and Stevens: For the defendant. Heck if I can predict these two Justices’ reasoning. If past practice is any indication, I think they silently will join an opinion written by Justice Scalia, without providing any specific insight into their individual lines of thinking.

5. Justice Thomas: A toss-up. Justice Thomas may well conclude that this is a situation in which the ACCA enhancement cannot constitutionally be applied unless the recidivism of the defendant is treated as an element of the crime and submitted to the jury for evaluation. If he goes this way, then he will vote with the Scalia-Alito-Souter-Ginsburg-Stevens majority in favor of the defendant.

So, hazardous though this kind of speculation can be, I am predicting a 5-4 or 6-3 outcome in favor of the defendant in this case. Of course, if I am wrong about Justice Alito, the case could flip and the government could win.

Dejá-Vu in Begay v. United States

Anita Krishnakumar — Mon, 05 May 2008 20:09:14 +0000

Last month, the Supreme Court issued an opinion in a little-discussed but methodologically intriguing statutory interpretation case called Begay v. United States. Begay addresses the range of predicate convictions that qualify a defendant for sentence enhancement under the Armed Career Criminal Act of 1984 (the “ACCA”), 18 U.S.C. §924(e). The sentencing enhancement provision is one which the Court addressed last term (2006-2007) in the context of a different predicate offense, in a case called James v. United States. Taken in tandem, the two cases intrigue because despite involving the same statutory provision and being decided by the same nine justices (no retirements or replacements in the interim), they produced different outcomes, different voting coalitions, and even different reasoning by some Justices.

At issue in both cases is a provision of the ACCA that imposes a mandatory 15-year minimum sentence on an offender who possesses a firearm while committing a felony IF the offender previously was convicted of three “violent felonies” or “serious drug offenses.” The Act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B)(ii). This last clause is referred to as the “otherwise” or “residual” clause and is the provision subject to interpretation in both Begay and James. In James, the question presented was whether a conviction for “attempted burglary” falls within the residual clause; in Begay it was whether a conviction for driving under the influence of alcohol (DUI) does. (Under New Mexico law, DUI becomes a felony punishable by a prison term of more than one year the fourth time an individual commits it; by the time of his federal offense, Begay had twelve DUI convictions, nine of which counted as felonies under New Mexico law.)

The Court, in two fractured opinions, answered the presented questions “yes” in James (attempted burglary counts) and “no” in Begay (a DUI does not count). Only three Justices were in the majority in both cases. Only one Justice dissented in both. So, what is going on with Justices’ reasoning? The following roadmap attempts to explain:

1. In the Majority Both Times: The unusual combination of Justices Breyer, Roberts, and Kennedy voted to enhance James’ sentenced based on his attempted burglary conviction, but not to count Begay’s DUI conviction as a violent felony under the same sentencing enhancement. They reached this result by first articulating the relevant test as whether the risk posed by the offense at issue (attempted burglary, DUI) is comparable to that posed by its closest analog among the enumerated offenses. These three Justices then reasoned that (i) of the enumerated offenses, attempted burglary is most analogous to burglary; (ii) the reason that burglary is considered a “violent felony” subject to sentencing enhancement is because it creates a risk of confrontation with, and injury to, innocent third parties; (iii) that risk of confrontation with and injury to innocent third parties also is present in the offense of attempted burglary; and (iv) attempted burglary therefore poses a risk comparable to the enumerated offense of burglary. By contrast, these Justices found that a DUI conviction contains no analog among the enumerated crimes because unlike the enumerated crimes, DUI is not a “purposeful,” “violent,” and “aggressive” offense. Accordingly, they concluded that DUI offenses are not covered by the residual clause. In addition, the Begay majority spent some time opining that one who commits a DUI offense is not necessarily the “type of offender” —i.e., a violent career criminal—whom Congress sought to deter from possessing a gun.

Majority’s Test: In order to count as a “violent felony” under the ACCA firearm enhancement provision, an offense must be similar both in degree of risk (established in James) and in kind (added in Begay) to one of the enumerated offenses. Methodology: Ejusdem generis of sorts – interpret the offenses (and offenders) covered by the general residual clause to be “of the same kind” as the specific offenses (and offenders) listed in the rest of the provision.

2. Dissenters in James, Majority in Begay: Justices Scalia, Stevens, and Ginsburg read the ACCA enhancement provision as insufficient to cover either attempted burglary or DUI, putting them in the dissent in James and in the majority, outcome-wise, in Begay. Justice Scalia authored the dissent in James and concurred in Begay; both of his opinions chastised the majority for taking an ad-hoc approach to interpreting the residual clause and offered an alternative test for determining whether a particular offense fits within the residual clause. Justice Scalia’s test, which he admits is imperfect, but argues is clearer than the majority’s = whether the offense at issue is at least as dangerous as the least dangerous of the offenses enumerated in the enhancement provision. This formulation, of course, begs the question: Which of the four enumerated offenses (burglary, arson, extortion, crimes involving explosives) is the least dangerous? After extensive discussion, Justice Scalia’s James dissent concluded that the least dangerous of the enumerated offenses is extortion. So the test, as envisioned by Justice Scalia = whether the offense at issue is at least as dangerous (read poses at least as much risk of injury) as extortion. Applying that test in both cases, along with a healthy dollop of the Rule of Lenity (maxim that in close cases, where the statute is unclear, the benefit of the doubt goes to the defendant) Justice Scalia found that there was insufficient evidence to show that either attempted burglary or DUI is at least as dangerous as extortion.

Methodology: Heavy reliance on the Rule of Lenity, a scale-tipping device that requires a narrow construction favoring the defendant when a criminal statute is less than clear; substantial interpretive license in crafting that narrow construction.

Although they voted the same way as Justice Scalia in both cases, it is unclear what Justices Stevens and Ginsburg think is the appropriate test for whether an offense fits within the residual clause of the ACCA enhancement provision. On the one hand, they joined Justice Scalia’s dissenting opinion in James, suggesting that they agree that an offense must pose at least as great a risk of injury as does extortion in order to subject a defendant to the sentencing enhancement; on the other hand, they joined the majority opinion rather than Justice Scalia’s concurrence in Begay, suggesting that they believe an offense must be similar in both kind and degree to one of the enumerated offenses (not necessarily extortion) in order to qualify the defendant for the enhancement.

Methodology: Who knows? Only the enumerated offenses qualify a defendant for the enhancement? No other offenses clearly are covered by the residual clause?

3. Majority in James, Dissenters in Begay: In stark contrast to Justices Scalia, Stevens, and Ginsburg, Justices Alito and Souter concluded that both attempted burglary and DUI are covered by the residual clause. Justice Alito authored the majority opinion in James, and the dissent in Begay. Both of his opinions emphasize the statutory text, which he reads to focus on the degree of risk of physical injury to another, rather than on commonalities between the enumerated offenses and the offense at issue. Alito’s Begay opinion, moreover, accuses the Begay majority and Justice Scalia of inventing “procrustean” constructions of the residual clause that “cannot be squared with” the statutory text.

Methodology: Text first! Any offense that poses a substantial risk of physical injury to another person qualifies the defendant for the enhancement. No hair-splitting and no special treatment for offenses that lack mens rea or do not seem as morally culpable (or “purposeful,” “violent,” or “aggressive”) as the enumerated offenses.

4. Dissenter in Both Cases: Justice Thomas argued that application of the sentencing enhancement in James was unconstitutional because it would raise the defendant’s sentence beyond the maximum that lawfully could have been imposed under the facts found by the jury or admitted by the defendant. In Begay, by contrast, he found no such incongruence between the enhancement and the maximum allowable sentence for the offense committed, so he joined Justice Alito’s dissent based on the plain text of the statute. While some might find the dissenting threesome of Justices Thomas, Alito, and Souter odd, I have argued in an earlier post that each of these Justices gives first priority to the plain text of the statute — when he believes the statutory text to be clear — so their combination in an opinion such as this one, which relies so heavily on the plain meaning of the statute’s text, should not be terribly shocking.

Upshot: Justices Alito, Souter, and Thomas have proved the most committed to the statutory text in the context of this criminal sentencing enhancement, even when the resulting outcome is not-so-palatable to them. (Their Begay dissent openly expresses sympathy for the result produced by the majority, but laments the majority’s construction as irreconcileable with the text). Justice Scalia has proved consistent, across cases, in applying the rather atextual, but Rule-of-Lenity-inspired, construction which he concocted to limit the reach of an ambiguous criminal statute. Justices Stevens and Ginsburg have proved somewhat mysterious, and arguably inconsistent, in their reasoning with respect to this particular sentencing enhancment. And Justices Breyer, Roberts, and Kennedy have proved rather common-law-judge-like in their willingness to tweak the applicable test for this sentencing enhancement (adding on a “similar in kind” requirement) in order to achieve their version of justice on a case-by-case, ad-hoc, basis.

Trust Law Meets Statutory Interpretation

Anita Krishnakumar — Sat, 01 Dec 2007 02:24:43 +0000

For my final guest post, I want to talk about a case argued before the Supreme Court on Monday (November 26): LaRue v. DeWolff, Boberg, & Assoc. The case involves the appropriate interpretation of ERISA provisions governing individual pension plan participants’ right to sue the fiduciaries who administer their plans. While the subject might bore the average lawyer, as one who teaches courses both on statutory interpretation and on trusts, I find it intriguing. So, here goes: LaRue is a participant in an ERISA-covered Section 401(k) pension plan that is sponsored by his employer, DeWolff. DeWolff administers the plan and so qualifies as an ERISA fiduciary. Under the plan, participants may choose among several investment options and may direct DeWolff, as plan administrator, to invest the amounts allocated to their individual accounts in specified percentages. LaRue claims that DeWolff breached its fiduciary duties to him by failing to follow his investment allocation instructions, resulting in a loss of approximately $150,000.

Enter ERISA Sections 502(a)(2) & (a)(3), 29 U.S.C. 1132(a)(2) & (a)(3), under which LaRue seeks to have the plan reimbursed for that alleged $150,000 loss (after which the plan would allocate the funds to his individual account). ERISA Section 502(a)(2) authorizes a participant and others to sue a fiduciary (like DeWolff) to recover “losses to the plan” resulting from a breach of fiduciary duty. Section 502(a)(3) is a catch-all provision that authorizes a plan participant and others to sue for, among other things, “appropriate equitable relief . . . to redress” “any act or practice which violates” ERISA.

The issues thus become: (1) Does Section (a)(2) authorize a plan participant to sue for recovery that would inure to his individual account rather than to the benefit of the plan as a whole?; and (2) Does LaRue’s claim to recover the alleged $150,000 loss constitute a claim for equitable relief (as opposed to a legal claim for compensatory damages), as required under (a)(3)?

The Fourth Circuit answered both of these questions in the negative. LaRue, joined by the United States (whose views were solicited by the Supreme Court), argues that both of these questions should be answered in the affirmative, hanging his hat primarily on purpose-based arguments. The amicus brief filed by the United States likewise focuses primarily on purpose-based arguments: To wit, ERISA’s express statement that it is designed “to protect . . . participants . . . and their beneficiaries” by establishing standards of conduct for fiduciaries and “providing . . . appropriate remedies . . . and ready access to the Federal courts” to enforce those standards. (Emphasis added). Both LaRue and the United States emphasized this purpose during oral argument, maintaining that given its aim to empower plan participants to enforce their rights against plan fiduciaries, Congress could not have intended to deprive individual plan participants of the right to sue under Section 502(a)(2). Notably, although they did not speak in terms of statutory purpose, the Justices — particularly Justices Ginsburg, Souter, Breyer, and Stevens — seemed sympathetic to this idea that the statute must provide some remedy for individual investors whose instructions are ignored by a plan fiduciary.

But perhaps the most interesting aspect of this case to me is a canon, and an aspect of trust law, upon which no one seems to have focused enough attention. That canon is the reference, or extrinsic source, canon that authorizes courts to look to the common law of trusts to fill in gaps and give meaning to ambiguous ERISA provisions. The idea behind the common law reference canon is that Congress legislates against the backdrop of the common law and is presumed to incorporate accepted common law principles into the legislation it enacts, so that common law understandings are an acceptable extrinsic reference for courts to consult when construing statutes. This is particularly true where, as here, ERISA explicitly acknowledges that its fiduciary duties are derived from the common law of trusts. LaRue and the United States (and some amici) do invoke the common law of trusts to an extent — as part of their argument that the catch-all provision in Section 502(a)(3) permits claims of the kind LaRue is making. (They argue that if equitable relief would have been available at common law against a trustee who failed to follow a beneficiary’s investment instructions, then a 502(a)(3) “equitable” claim should be available here against an ERISA fiduciary who committed the same breach.)

But it seems to me that the parties are missing a broader common-law-based argument, one that supports LaRue’s right to sue under both Section 502(a)(3) and Section 502(a)(2): One of the foundational principles of the common law of trusts, at least in the modern era in which trustees are given wide discretion to manage trusts comprised mostly of financial instruments, is that the trust system would fall apart —i.e., that trustees would be free, at best, to slack off and, at worst, to steal from beneficiaries with impunity— unless an adequate mechanism existed through which beneficiaries could punish trustees for misconduct. Thus much of modern trust law is designed to ensure that beneficiaries have the ability to haul trustees into court and hold them personally liable if they violate their fiduciary duties. It is for this reason that trust law requires trustees to provide annual accountings to beneficiaries and that certain limits are placed on who can be named a trust beneficiary (pets, for example, cannot be valid beneficiaries because they cannot sue a trustee for fiduciary breach — though in some states, this rule can be bypassed by designating a human caretaker for the pet). In other words, LaRue’s purpose-based argument could be strengthened by not only referencing ERISA’s express purpose to protect plan participants, but also reminding the Court of trust law’s fundamental obsession with ensuring that beneficiaries have the power to haul trustees into court to redress fiduciary breaches (and of the common law notion that the very viability of the trust system depends on this after-the-fact power). In this light, construing ERISA to strip individual plan participants of the power to bring suit when the injury caused by the fiduciary affects only an individual account, rather than the plan as a whole, would run contrary to the common law backdrop against which Congress avowedly legislated when it enacted ERISA. (Note: Such a common-law-based argument, unlike statutory purpose arguments, would have had a greater likelihood of appealing to ardent textualists like Justice Scalia).

Not that LaRue is likely to lose without this additional common-law-based argument: My reading of the oral argument is that the Court will rule in his favor and interpret Section 502(a)(2) to allow individual plan participants to sue the plan fiduciary for breaches of the kind alleged (and then decline to reach the 502(a)(3) issue as “unripe” or “unnecessary”). It may even do so in a unanimous opinion. But I would have liked to see the argument made in those terms, and referenced at oral argument.

An Overlooked Legacy of Lochner v. New York

Anita Krishnakumar — Mon, 19 Nov 2007 20:33:55 +0000

I recently came across an article by David Bernstein called Lochner v. New York: A Centennial Retrospective. The article, which has been blogged about both on Legal Theory and on the Volokh Conspiracy (albeit some time ago, but archives have a way of keeping this stuff alive), discusses the history and legacy of Lochner and tracks how the case came to be part of the “anti-canon.” Bernstein’s central arguments are: (1) that the law challenged in Lochner was the product of special interest pressure by unionized bakers seeking to restrict competition from recent immigrant bakers who were willing to work longer hours, not the result of a benevolent social movement to aid workers and the poor; and (2) that the Lochner majority opinion did not become a leading case in the “anti-canon” until the 1960s, when the Supreme Court began to debate Lochner’s legacy in Griswold v. Connecticut.

Bernstein’s article is interesting and informative, but I write here to highlight an important aspect of the story to which it gives short shrift. The point to which I wish to draw attention is the significance of the Lochner dissent. Bernstein mentions in passing that judges and scholars initially paid attention only to Justice Holmes’s famous dissent (rather than to the majority opinion) — but in so doing, he glosses over one critically important legacy of the case: It is the foundational, precedent-setting Canonical Dissent, the case that paved the way for the canonization of dissenting opinions as a form of legal authority. As I have argued elsewhere (see On the Evolution of the Canonical Dissent), before Lochner and the New Deal, the concept of admitting judicial error, let alone calling attention to a dissenting opinion, was anathema to the American legal system. In fact it was believed that such an acknowledgemnt of error would threaten the (somewhat shaky) legs upon which judicial legitimacy stood.

The New Deal and the switch in time, however, profoundly changed this legal backdrop. For the first time, the Court’s reversal of a prior precedent occurred in a very public manner and, indeed, occurred because of public repudiation of the pre-1937 Court’s commitment to limited government and its libertarian position on economic rights — a point which Bernstein acknowledges when he notes that many Americans blamed the laissez-faire policies of previous Presidents for the continuing economic crisis.

Within a decade after the switch in time, and largely as a way of re-legitimating the Court’s image in the wake of its perceived interference with popular New Deal measures, Justice Holmes came to be viewed as the voice of reason on the Fuller Court, and his Lochner dissent came to symbolize the warning that could-have and should-have been, but was not, heeded. Citing the dissent not only became permissible (as doing so would not highlight any judicial error of which the public was not already aware), but eventually emerged as a potent tool for discrediting opposing viewpoints. Indeed, it is only after the Lochner experience that the canonization of Justice Harlan’s dissenting opinion in Plessy v. Ferguson and Justice Brandeis’s dissenting opinion in Olmstead v. United States became possible — because the groundwork had been laid for the subsequent elevation of a losing judicial position. Thus, I would append this addendum to Bernstein’s insights about the legacy of Lochner: Whatever the historical and judicial developments responsible for establishing Lochner’s place in the anti-canon, we must not forget that the case also spawned the birth of a new, independently revolutionary legal phenomenon — the canonical dissent.

Impending Budget Battle Reminiscent of 1995-96 Budget Showdown?

Anita Krishnakumar — Thu, 15 Nov 2007 20:44:49 +0000

The Washington Post ran an interesting piece yesterday, November 14, by Peter Baker titled, Bush Veto Sets Up Clash on Budget, Democrats Make War-Funds Threat. The article begins:

A budget dispute erupted into a full-scale battle Tuesday as President Bush vetoed the Democrats’ top-priority domestic spending bill and the party’s Senate leader threatened to withhold war funding if the president does not agree to pull out of Iraq.

The long-anticipated clash came to a head as Bush rejected a $606 billion bill to fund education, health and labor programs, complaining that it is too expensive and is larded with pork. Within hours, Senate Majority Leader Harry M. Reid (D-Nev.) declared that Bush will not get more money to pay for the wars in Iraq and Afghanistan this year unless he accepts a plan to complete troop withdrawals by the end of next year.

The Washington Post article goes on to compare the impending budget showdown between President Bush and the Democratic Congress to the infamous 1995-96 budget battle between President Clinton and a then-Republican Congress — a battle which resulted in several government shutdowns and widely is considered to have ended in a political victory for President Clinton. In fact, the article notes that “[a] politically weakened Clinton used that episode to redefine himself, just as an unpopular Bush wants to wage a veto fight to demonstrate strength with 14 months left in office and to play off a Congress with as little public support as that led by Newt Gingrich a dozen years ago.”

Having written about the 1995-96 budget showdown in some detail (see article), and having given some thought to separation of powers issues in the budget context, I offer these observations in response to the comparison invited by the Washington Post article:

1. The 1995-96 budget battle undoubtedly taught that the President has the political and procedural leverage in a head-to-head showdown with Congress. Among other things, the Chief Executive has a built-in media advantage because he can fly around the country making speeches that vilify Congress and explaining why he simply had to veto the atrocious budget Congress sent him. Moreover, he has the ability to speak as one voice for his Administration, whereas Congressional leaders must struggle to keep various legislative factions together and to represent the will of a multi-member body.

2. Nevertheless, there are key differences between the impending 2007-08 budget showdown and the 1995-96 episode. First, the root cause of public dissatisfaction with the 104th Congress in 1995 is substantially, and materially, different than the root cause of public dissatisfaction with the 110th Congress in 2007. Public ire with the Newt-Gingrich-led Republican Congress arose as a result of that Congress’ aggressive insistence on implementing radical policy shifts (embodied in the Contract With America) through the budget process, and on its (and Newt Gingrich’s) willingness to hold the rest of the budget hostage as a weapon to force the President to go along with this radical remaking of government. Public dissatisfaction with the current Democratic Congress, by contrast, is based on this Congress’ failure, thus far, to stand up to the President — and particularly on its failure to get American troops out of Iraq. If Congress now starts a budget battle precisely to stand up (finally) to President Bush on the Iraq issue, public reaction to that showing of backbone could be quite different than it was 12 years ago, even if we end up with another government shutdown. The crucial difference may be that whereas the Contract With America originated with the Republican Party and represented its vision, the impetus for withdrawing troops from Iraq comes from the American people — not the Democratic Party — in the first instance.

3. Relatedly, President Clinton’s political weakness vis-a-vis the public stemmed from private scandals and the botched universal health care attempt, not from his refusal to scrap Medicaid or to shrink the size of the federal government in order to balance the budget (these latter being the substantive basis for his disagreement with the Republican Congress’ proposed budget). Thus, the Republican Congress in 1995 could not counter President Clinton’s attacks on its proposed budget by shouting, “Oh yeah? Well, what about Travelgate? What about Whitewater?” By contrast, President Bush’s stunningly low approval rating has been earned almost entirely as a result of his handling of the Iraq War, a fact which provides Congressional Democrats with an easy counterpoint to his attacks on their spending proposals: Indeed, as the Washington Post article reports, Democrats openly have contrasted the $10 billion they seek in domestic spending (and that President Bush vetoed) with the $196 billion the President is seeking in additional war funding. The soundbite opportunities abound, as Senator Ted Kennedy’s comments in the Washington Post illustrate: “Cancer research, investments in our schools, job training, protecting workers and many other urgent priorities have all fallen victim to a president who squanders billions of dollars in Iraq but is unwilling to invest in America’s future.”

In the end, President Bush may well seize the bully-pulpit and turn this budget battle into a chance to reconnect with the American people. Stranger things have happened. But my money is on Congress this time, because if it sticks to its guns, then the President will be in the doubly unpopular position of both (1) causing a government shutdown by refusing to approve domestic spending that looks small in comparison to his war funding and (2) refusing to come to the table on troop withdrawal despite the public’s overwhelming desire to exit Iraq.

Statutory Stare Decisis in John R. Sand & Gravel Co. v. United States

Anita Krishnakumar — Tue, 13 Nov 2007 16:41:59 +0000

This past Tuesday, November 6, the Supreme Court heard head-spinningly complicated but (perhaps for this reason) thoroughly entertaining oral arguments in a case called John R. Sand & Gravel Co. v. United States. The case evolved as follows: John R. Sand & Gravel Co. owns a long-term lease on 158 acres of land in Lapeer County, Michigan. A pre-existing landfill located on this land is contaminated with illegally-accepted industrial waste. In 1992-1993, the United States Environmental Protection Agency (EPA) erected a chain link fence around roughly 60% of John R. Sand’s leasehold land and began excavating the contaminated waste from the site. Since 1992, EPA has at various times removed and relocated the fence to different parts of John R. Sand’s leased land and at one point obtained an injunction preventing John R. Sand from interfering with its remedial efforts. In 2002, John R. Sand filed a complaint seeking just compensation for the EPA’s “permanent physical taking” of portions of its leasehold land.

John R. Sand’s lawsuit is authorized under the Tucker Act, 28 U.S.C. §1491(a), which waives the United States’ sovereign immunity for claims “founded upon the Constitution” and confers jurisdiction on the Court of Federal Claims (CFC) to hear such claims. The government initially moved for judgment on the pleadings on the grounds that John R. Sand’s suit was time-barred under 28 U.S.C. §2501. Section 2501 provides that:

Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.

The CFC denied the government’s motion, finding that John R. Sand’s takings claims based on EPA’s construction of the chain link fence did not accrue until 1998. In subsequent pre-trial briefing, the government took the position that the fence-based claims accrued in 1998. Following a bench trial, the CFC ruled against John R. Sand on the merits. On appeal, the government did not argue that John R. Sand’s complaint was time-barred. An amicus brief, however, raised the timeliness issue, and the Court of Appeals sua sponte addressed it on review, concluding that John R. Sand’s fence-based takings claims had accrued in 1994 rather than 1998 and that his 2002 complaint thus was time-barred under 28 U.S.C. §2501.

Here’s where the case gets complicated(!) Ordinarily, an argument that a plaintiff’s claim is time-barred under the applicable statute of limitations is an affirmative defense, which must be raised and preserved by the defendant in order to avoid being waived. Which would mean that where, as here, the defendant conceded that the accrual date was 1998 and dropped the statute of limitations argument altogether on appeal, the Court of Appeals could not resurrect that argument as a basis for its ruling. BUT, the United States is no ordinary defendant. It is a defendant who ordinarily cannot be sued, except when it consents to do so by statute. If that statutory consent comes attached to a time limitation for filing claims against the United States, then the failure to comply with the limitations period no longer is an ordinary affirmative defense, but a condition of the sovereign immunity waiver. So the question becomes: Is the six-year limitations period in 28 U.S.C. §2501 meant to be part and parcel of the United States’ consent to be sued under 28 U.S.C. §1491(a), or is it merely an ordinary limitations period subject to waiver? Or, put more technically, is the statute of limitations set forth in 28 U.S.C. §2501 jurisdictional (meaning that it establishes a condition that the plaintiff must meet in order to have a right to sue the government in the first place) or is it merely procedural (meaning that it does not speak to plaintiffs’ right to sue, but only to whether or not a remedy can be granted for a violation of those rights)?

John R. Sand has a pretty good plain meaning argument that because 28 U.S.C. §2501 bars petitions filed more than six years after the accrual of a claim “of which the United States Court of Federal Claims has jurisdiction,” it treats the conditions for establishing subject matter jurisdiction as distinct from the requirement that claims be brought before the CFC within six years from when they accrue. In other words, because the text of the statute makes clear that the six-year time constraint applies to claims over which the CFC “has jurisdiction,” the time constraint itself cannot be a pre-condition necessary in order for jurisdiction to attach.

Complication #1: The Tucker Act’s waiver of sovereign immunity and the six-year limitations period on cases filed before the CFC have been around for a long time, in various statutory forms. And the Supreme Court has on several previous occasions ruled that the limitations period in 28 U.S.C. §2501 and its predecessor statutes is jurisdictional in nature. See, e.g., Soriano v. United States, Kendall v. United States, Finn v. United States . A long-standing rule of statutory interpretation holds that where the Court has given a particular construction to words or phrases in a statute, that judicial construction becomes part and parcel of the statute itself, until and unless Congress changes the statute through amendment or repeal. This “statutory stare decisis” principle has been taken to extremes, as in Flood v. Kuhn , when the Court refused to extend the reach of the Sherman Antitrust Act to organized baseball — despite the fact that every other major league sport was subject to antitrust laws — because of two earlier judicial decisions construing baseball to be exempt from antitrust regulations. (See Federal Baseball Club v. National League; Toolson v. New York Yankees). In the case of the Tucker Act, although Congress has recodified and refined the relevant statutory sections since Kendall, Soriano, and Finn were decided, it has not taken the opportunity substantially to change the language or import of these statutory provisions. (For statutory interpretation buffs: This argument, hammered home repeatedly in the government’s brief, smacks a bit of the “Dog That Did Not Bark” canon — itself a reference to a famous inference drawn by Sherlock Holmes in Sir Arthur Conan Doyle’s The Adventure of Silver Blaze ).

Complication #2: In a 1990 case called Irwin v. Dep’t of Veterans Affairs , the Supreme Court ruled that statutes of limitations may be equitably tolled even when the United States is the defendant. This ruling is inconsistent with the Court’s prior line of cases holding that certain statutes of limitations, including 28 U.S.C. §2501, are jurisdictional — because courts do not have the authority to create equitable exceptions (like tolling) to jurisdictional requirements. See Bowles v. Russell . Indeed, Justice White, dissenting in Irwin, asserted that the Court’s opinion effectively overruled Soriano .

Thus, much of the Justices’ questioning at oral argument centered on the extent to which Irwin overruled, or at least limited, the Court’s prior decisions holding that 28 U.S.C. §2501 is jurisdictional in nature. John R. Sand argued that Irwin squarely overruled Soriano. (To borrow from Karl Llewellyn, I’ll call this the first Thrust). The Chief Justice pointed out that Irwin involved Title 7, and not §2501, at issue in this case. (Parry). John R. Sand contended that Irwin held that statutes of limitations generally are subject to equitable tolling, and that if they are equitably tollable, they cannot be jurisdictional. (Thrust). Justice Scalia rejoined that that was John R. Sand’s take on the holding of Irwin, and that Irwin did not say that a statute of limitations could not both be subject to equitable tolling and be jurisdictional. (Parry). Justice Ginsburg stepped in and pointed out that the Court’s opinion in Bowles did say that if a statute is subject to equitable tolling, then it is not jurisdictional. (Thrust). Chief Justice Roberts noted that it was “pretty risky business” to rely on a dissenting opinion in Irwin to determine that that case had overruled Soriano. (Parry). But Justice Stevens later circled back to point out that the majority opinion in Irwin did not take issue with the Irwin dissent’s characterization that the Court was overruling Soriano. (Thrust). The list of jabs and counterjabs goes on, but you get the idea.

In the end, this is one statutory interpretation case whose ultimate resolution is unlikely to focus on the plain meaning v. ambiguity of the statute, even and especially for Justice Scalia. (In fact, it is Justices Stevens and Kennedy who seem most persuaded by John R. Sand’s argument that the text of the statute makes the limitations period look non-jurisdictional). Instead, the Court’s ruling and opinion(s) are likely to grapple significantly with the patchwork of prior cases that have addressed this statutory section. Interestingly, Justice Scalia foreshadowed one possible method by which the Court could reconcile the conflicting caselaw: Irwin could be read to hold only that statutes of limitations considered to be jurisdictional nevertheless can be equitably tolled (so that prior caselaw on jurisdictional statutes of limitations would be overruled only insofar as equitable tolling is concerned). But this is an approach that seems unlikely, based on oral argument, to win the votes of the Chief Justice or of Justices Ginsburg, Breyer, or Stevens. So, my prediction is that if it shows up in an opinion, it will be in a concurring opinion by Justice Scalia. Look also for some kind of separate opinion from Justice Ginsburg highlighting that under Rule 8(c) of the Rules of the Court of Federal Claims, statutes of limitations are listed as an affirmative defense to be pled in the responsive pleadings.

Interlocking Statutes, Statutory Anomalies and Legislative Purpose

Anita Krishnakumar — Fri, 09 Nov 2007 18:07:01 +0000

More on the statutory interpretation front: The Supreme Court last week heard oral arguments in Logan v. United States, a case involving the interplay between multiple federal criminal statutes, state law treatment of convicted offenders, and interpretive chestnuts such as the Absurd Results canon.

Federal laws: (1) Under 18 U.S.C. § 922(g)(1), it is unlawful for a person who has been convicted of a crime punishable by more than one year’s imprisonment to possess firearms. (2) Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), convicted persons who violate §922(g)(1), and whose prior convictions include at least three violent felonies or serious drug offenses, face a mandatory minimum fifteen-year sentence. (3) 18 U.S.C. §924(e)(2)(B) defines “violent felony” as a violent crime that is “punishable by imprisonment for a term exceeding one year.” (4) But, under the amended version of 18 U.S.C. § 921(a)(20), enacted as part of the Firearms Owners Protection Act (FOPA), any conviction that “has been expunged, or set aside or for which a person has been pardoned or has had [his] civil rights restored” does not count as a predicate offense “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” To complicate matters, 18 U.S.C. §921(a)(20)(B) specifies that offenses classified by a State as misdemeanors may qualify as a “violent felony” (and thus as a predicate for a felon-in-possession conviction under § 922(g)(1)) if the misdemeanor is punishable by more than two years’ imprisonment.

State law: Wisconsin law classifies simple battery (causing bodily harm, as opposed to substantial or great bodily harm) as a misdemeanor offense, punishable by a maximum sentence of three years’ imprisonment. Wis. Stat §§ 940.19(1) (2003); 939.62(1)(a) (2000). Wisconsin law does not deprive persons convicted of a misdemeanor of any civil rights or of the right to possess a firearm. Wis. Stat. §§ 6.03(1)(b) (2006); 756.02 (1997); 973.176(1) (2006).

In 2005, Petitioner James D. Logan pleaded guilty to possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). A Wisconsin district court sentenced him, under the ACCA, to 15 years’ imprisonment because he had three prior state misdemeanor battery convictions punishable by a maximum of three years’ imprisonment. Logan challenged that conviction, arguing that his Wisconsin misdemeanor convictions should be disregarded under §921(a)(20) because they did not result in the loss of his civil rights, thus leaving him in the same position as a felon whose civil rights have been restored. (Civil rights commonly are understood to include the rights to vote, to serve on a jury, and to hold public office). The question before the Court is: Does the “civil rights restored” exemption under §921(a)(20) apply to defendants whose civil rights never were taken away by the State in the first place?

The oral argument in this case was far from a romp through the canons of construction. The plain meaning of “restored” seems clearly to involve “giving something back” that has been taken away, and the Justices appear to be in agreement on that reading. What was interesting about the oral argument was (1) the Court’s focus on the anomalous consequences that the ACCA, in conjunction with FOPA §921(a)(20), creates for different felons both within and across states; and (2) the Court’s seeming lack of concern for the competing statutory purpose arguments made by counsel on both sides.

(1) Which anomaly matters?

Driven by Logan’s argument that refusing to apply the “civil rights restored” exemption to defendants whose civil rights were not taken away would create an absurd result, the Court engaged in some back-and-forth about what consequences the federal-state statutory interplay would create for different classes of offenders. On the one hand, Logan noted that under the government’s (and the 7th Circuit’s) reading, defendants like Logan who are considered less dangerous or blameworthy by a state, and thus are allowed to retain their civil rights under a state’s criminal law, will be treated more harshly under the ACCA than defendants who are convicted of more serious crimes in the first instance, and who accordingly have their civil rights taken away, by the same state (because, according to Logan, the latter often will have their civil rights restored once they have served their sentences). Thus, the statutory interplay would cause the most culpable offenders within a state to be treated less harshly under federal law than less serious offenders within the same state. On the other hand, the government argued that Logan’s proffered reading would produce equally anomalous consequences across states because some states, like Maine, do not revoke convicted felons’ civil rights under any circumstances — even when the felony committed was murder — so that under Logan’s formulation, firearm-carrying felons who previously had been convicted of murder in Maine would be treated better under the ACCA than firearm-carrying minor felons in other states whose civil rights were taken away but not subsequently restored. (So one lurking point of factual disagreement between the government and Logan concerns the circumstances and frequency with which states restore civil rights to convicted felons or misdemeanants).

(2) Which Purpose Matters?

Despite the fact that both sides’ briefs discuss statutory purpose, the Court seemed utterly uninterested in purpose-based reasoning at oral argument. Perhaps the interlocking statutory scheme is responsible, in that it begs the question: Which statute’s/section’s purpose matters most? The government’s brief stresses the statutory purpose of the ACCA, which it asserts was to “keep guns away from all offenders who, the Federal Government feared, might cause harm even if those persons were not deemed dangerous by the State.” See Brief for the United States. Interestingly, it cites not to the ACCA for this purpose, but to a prior Supreme Court decision, Caron v. United States — whose characterization of the ACCA’a purpose now has become part of the statute itself, according to traditional rules of statutory interpretation. Logan, by contrast, emphasizes the statutory purpose of the FOPA, which he argues was to ensure federal deference to state determinations of a convicted felon’s trustworthiness. It is unclear where Logan gets this purpose from; nothing in the preamble or findings of §921(a)(20) / FOPA seems to set forth such a purpose. But assuming that he is correct, it is difficult to know which statute’s purpose to privilege, particularly since the two interlocking statutes bear such conflicting (alleged) purposes. Notably, this is a difficulty that arises often in the related context where a court is called upon to determine the scope of a statutory exception or exemption — i.e., which purpose should control, the purpose of the underlying statute, or the purpose of the exception/exemption? As in the present case, the purpose of the exception is likely to conflict sharply with the purpose of the statute it is designed to limit.

Predictions: In the end, the Court seems likely to chalk the anomalous consequences of the statutory scheme up to legislative oversight or “mistake” (a word used by Chief Justice Roberts during oral argument), and should be loathe to ignore the statute’s plain meaning in order to correct discrepancies that may, at worst, have been produced by poor legislative drafting. (This is particularly true since a fifth federal statutory section, 18 U.S.C. §921(a)(33)(B)(ii), governing domestic violence convictions, explicitly limits the exception for “civil rights restored” to felons whose civil rights first have been taken away under applicable state law — suggesting that Congress may have intended the anomaly in §921(a)(20)). Look for a unanimous, or near-unanimous, opinion in favor of the government.

Early Reflections on the Roberts Court and Legislative History

Anita Krishnakumar — Tue, 06 Nov 2007 16:15:33 +0000

The Roberts Court undoubtedly still is in its infancy when it comes to matters of statutory interpretation. Despite this shortage of extrapolation-material, I think it possible to hazard a few speculations about emerging trends in the fledgling Court’s statutory interpretation methodology. At least as concerns legislative history —an ever-fertile ground for debate amongst judges and academics— I note three emerging camps among the Justices:

1.Stevens, Breyer, Ginsburg: Legislative History is relevant to help clarify statutory meaning in the first instance, because it provides context and can illuminate Congress’ intent and purpose in enacting the words at issue.

Evidence: In Hamdan v. Rumsfeld , a case that involved §1005(e)(1) of the Detainee Treatment Act (DTA), these three Justices were willing to rely in part on the fact that when Congress passed the DTA, it specifically considered and rejected a proposal to bar Supreme Court review of habeas applications from aliens detained at Guantanamo Bay that were pending at the time the statute was enacted. (The DTA clearly bars Supreme Court review of habeas applications filed after the date the statute takes effect, and the key question was whether that bar applied to an application filed by Hamdan before the statute was enacted).

Similarly, in Zuni Public School District No. 89 v. Dep’t of Education, these three Justices looked to and relied on the facts that (1) the Secretary of Education drafted the statutory language at issue and promulgated the challenged regulations (and calculation method for per-pupil expenditures) immediately thereafter; and (2) the challenged regulations had been in effect for 30 years prior to this challenge, during which time Congress never objected to the Secretary’s regulations or calculation method. (In other words, the Justices relied on the identity of the drafter and on post-enactment congressional silence).

2. Scalia (roping in/often joined by Thomas and thus far the Chief Justice): Legislative history is an unreliable and manipulable tool often used to effect Justices’ preferred policy outcomes. (But note that Scalia incongruously joined the majority opinion in the pre-Roberts-Court case of FDA v. Brown & Williamson Tobacco Corp., which relied heavily on Congress’ post-enactment behavior as evidence that Congress did not intend to give the FDA authority to regulate tobacco under the Food, Drug, & Cosmetics Act (FDCA)). Justice Thomas is not quite the ardent textualist that Justice Scalia is, but he has tended to join in Scalia’s ardently textualist opinions; Chief Justice Roberts likewise seems textually-inclined and disinclined to rely on a statute’s legislative history.

Evidence: In Hamdan, Justice Thomas joined Justice Scalia’s opinion reading the text of the DTA clearly to bar all courts from exercising jurisdiction over all habeas applications by Guantanamo detainees, irrespective of when the applications were filed — and taking the majority to task for resorting to the “unreliable” rejected proposal rule. (Chief Justice Roberts did not participate in the case). Likewise, in Zuni, Justices Roberts and Thomas joined Justice Scalia’s scathing opinion insisting that the text of the Federal Impact Aid Act clearly, unambiguously precludes the regulation and calculation method envisioned by the Secretary of Education when he drafted the statutory language in 1976, and criticizing the majority for using legislative history to trump the statute’s plain text. (Caveat: Justices Thomas and Roberts do not seem to share Justice Scalia’s utter loathing for legislative history, in that they have not gone so far as to dissent from any part of an otherwise unanimous opinion merely because the opinion cites a statute’s legislative history as being consistent with the interpretation dictated by the text. See, e.g., Kircher v. Putnam Funds Trust (unanimous opinion, Scalia refusing to join Part II); Warren v. Maine Board of Env’tl Protection (unanimous opinion; Scalia refusing to join Part III)).

3. Souter, Kennedy, Alito: These three Justices, perhaps surprisingly, so far have taken a middle approach to the use of legislative history in statutory interpretation — agreeing that such history is relevant and helpful, but only if the statute is unclear. If the statute’s meaning is clear, then in their view no amount of contrary legislative history can trump that clear meaning.

Evidence: In Zuni, Justice Souter agreed with the majority about Congress’ probable intent to allow the Secretary of Education to continue using the challenged calculation method, but concluded that the statutory text so clearly dictated a different method (and precluded the method used by the Secretary) as to render the legislative history unavailing and to require the Court to invalidate the Secretary’s regulations. In Hamdan, by contrast, Justice Souter found that the text at issue plainly preserved Supreme Court jurisdiction over pending cases, and was willing to consider legislative history that backed up textual arguments in favor of this reading.

Justices Kennedy and Alito, conversely, found the text in Zuni to be ambiguous, and thus were willing to consider evidence of the drafter’s intent and of post-regulation congressional silence to determine that Congress intended to allow the Secretary to use the challenged calculation method. (But they wrote separately, in a concurrence, to underscore that the crucial first question must be “Is the text clear?” and that legislative history should only be considered if the text is not clear — and to criticize the majority opinion for beginning with an analysis of the legislative history).

In Hamdan, Justice Kennedy, like Justice Souter, was persuaded that the text supported the Court’s jurisdiction over Hamdan’s case and was willing to consider legislative history supporting that interpretation. Justice Alito, by contrast, construed the text as plainly removing Supreme Court jurisdiction over all habeas petitions by Guantanamo Bay detainees, no matter when they were filed, and so refused to consider the rejected proposal legislative history cited by the majority.

What emerges from this miniature dissection are a few tentative principles: (1) Six of the nine Justices are willing to consider legislative history; three are willing to do so in every statutory interpretation case to help divine the statute’s meaning in the first instance, while three are willing to do so only if they believe the text to be ambiguous or if the legislative history is used merely to back up a textual argument they find convincing; and (2) the unlikely trio of Souter, Kennedy, and Alito are the Court’s swing Justices with respect to reliance on legislative history. Any party or advocate possessing persuasive or “smoking gun” legislative history will have to convince at least two of these three Justices that such legislative history is consistent with the statute’s plain meaning or that it clarifies an otherwise ambiguous statutory provision in order to get these “swing” Justices to rely on that history.

Missing Canons of Construction in Ali v. Federal Bureau of Prisons?

Anita Krishnakumar — Thu, 01 Nov 2007 17:09:23 +0000

This past Monday, October 29, the Supreme Court heard oral arguments in a little-noticed case that raises fascinating questions of statutory interpretation: Ali v. Federal Bureau of Prisons . Ali is a prisoner in the custody of the United States Bureau of Prisons. During a transfer between prisons, he handed over his property to Bureau of Prisons officials for transportation to his new prison. Ali alleges that when his property was handed back to him at the new prison, several religious and personal items, including (as Justice Ginsburg noted during oral argument) a Koran and prayer rug, were missing. After exhausting his administrative remedies, Ali filed suit in federal district court against the United States, the Bureau of Prisons, and three Bureau of Prisons officials for the value of his lost property.

Enter the Federal Tort Claims Act (FTCA), 28 U.S.C. §1346(b), 2671-2680, which waives the United States government’s sovereign immunity for lawsuits in which the petitioner alleges “injury or loss of property” that was “caused by the negligence or wrongful act or omission” of employees of the federal government — except for thirteen specified categories of governmental activity. One of the thirteen excepted categories is for “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” (Emphasis added).

So the $64,000 Question is: Does the phrase “any other law enforcement” officer include Bureau of Prisons officials, or is it limited, as Ali argues, to law enforcement officers who are acting in a customs or tax capacity?

The parties’ briefs, and the Justices’ questions at oral argument, offer a juicy exegesis into numerous textual canons of statutory construction. It’s the kind of romp through the canons that can make statutory interpretation professors like myself positively giddy: Is the statute’s reference to “customs or excise” officers an Example, or a List? Does the hoary (if unpronounceable to law students) ejusdem generis canon of construction apply here, or not? Does Congress’ use of the broad, encompassing word “any” before “other law enforcement officer” make the statute’s meaning plain and eliminate the need for (or the appropriateness of) further inquiry? Does Congress’ subsequent passage of an “exception to the exception” that circles back and waives sovereign immunity for civil forfeitures made by “law enforcement officers” shed light on the meaning of the original exception set forth in §2680(c)?

Unsurprisingly, the Justices seem split on which way to read the statute. (See Scorecard below). When the opinions are released next June, both the majority and the dissent undoubtedly will grapple extensively with the answers to the above questions. But what I want to raise in this post is the possibility —and even the likelihood— that the Justice’s forthcoming opinions will rely in important ways on some canons not discussed in either party’s briefs or at oral argument. The “Missing Canons” to which I allude are policy-based canons, or what William Eskridge calls “substantive canons” because they are based on background policy norms, rather than on linguistic or grammatical rules. Two substantive canons seem particularly likely to rear their heads this June: (1) The canon directing that waivers of sovereign immunity should be construed narrowly (likely to be invoked in favor of applying the exception to Bureau of Prisons officials, thereby subjecting the government to less litigation); and (2) On the flip side, the Due Process-based canon favoring availability of judicial review / keeping the courtroom doors open (likely to be invoked in favor of allowing suit against Bureau of Prisons officials). Breyer (who has discussed this Due Process canon before in the context of the Antiterrorism and Effective Death Penalty Act) and Ginsburg (who asked pointedly at oral argument what remedy Ali would have if the FTCA were read to bar suits against Bureau of Prison officials) seem most likely to rely on the latter canon, while Scalia and Thomas (and probably the Chief Justice) seem likely to embrace the former. Even if the Justices do not openly employ these canons in their opinions, readers should look for subtle (or not-so-subtle) statements indicating that these canons are doing at least some of the work in pushing the Justices towards their preferred readings of the statutory text.

A third substantive canon, advocated independently by both Cass Sunstein and William Eskridge , would look to the fact that prison inmates are a politically weak / underrepresented group and direct the Court thus to resolve any statutory ambiguity in their favor. I have argued that this suggested substantive canon is inappropriate and overinclusive and have proposed a legislative solution to address the concerns of underrepresented groups in a recent paper.

And last, some predictions:

SCORECARD:

(Justices’ Expected Votes):

For Federal Bureau of Prisons

(Exception applies to BOP officials)

Scalia

Roberts

Alito (a soft vote, expressed concerns about the word “detention”)

Thomas

For Ali

(Exception limited to officials acting in tax or customs capacity)

Breyer

Stevens

Souter

On the Fence

(Indiscernable Based on Oral Argument)

Kennedy (silent at oral argument)

Ginsburg (seemed skeptical of Ali’s proffered statutory reading, but also was concerned with what remedy he would have if his suit were deemed barred)