Will Baude’s Washington Post piece raises an interesting significance-of-the-legislative-process question. While Will (and the Court) frames the issue in constitutional terms, it has obvious statutory interpretation implications as well. Just a few things that popped out at me while reading Will’s piece:
1. On Justice Scalia’s Shelby County v. Holder comment that the unanimous vote in favor of renewing the VRA was about the “perpetuation of racial entitlement” and the difficulty of undoing such entitlements through the normal legislative process: Much has been written about this comment, but what strikes me is that it seems almost like a cousin—a hostile cousin, but a cousin—of the representation-reinforcement based canon of statutory construction advocated by Bill Eskridge and Cass Sunstein in the 1990s. Eskridge and Sunstein argued that in order to counteract the legislative process’s tendency to favor wealthy, well-organized interests over diffuse unorganized ones, courts should err on the side of construing statutes in favor of politically-disadvantaged litigants. As a corollary, they also advocated that when faced with a statute manifestly designed to benefit a narrow interest at the expense of a diffuse one (such as, say, a statute containing a tax exemption or a subsidy), courts should construe that statute narrowly, to limit the targeted benefit. Justice Scalia’s suggestion that civil rights statutes effect “racial entitlements” that should be viewed with skepticism turns the Eskridge-Sunstein principle on its head, since Eskridge and Sunstein would consider racial minorities a politically-disadvantaged group, but it sounds in similar concerns about legislative process (dys)function. The difference is simply in which interest groups one considers to be politically-favored or entrenched. The Supreme Court has never really embraced the proposed representation-reinforcement canon, however, and despite Justice Scalia’s famous comment in Shelby County, it remains unlikely to do so.
2. Justice Ginsburg’s comments in Hobby Lobby, noting that “People from all sides of the political spectrum voted for [RFRA]” and arguing that “It seems strange that there would have been that tremendous uniformity if it means what you said it means, to cover profit corporations”—strikes me as a different kind of argument altogether. Her comment focuses on legislative intent, not interest group politics and seems to me to be a relative, if not quite a cousin, of the Dog That Didn’t Bark canon. That canon reflects a Sherlock Holmes-inspired principle that if Congress intends for a statute to work a significant change in the status quo, we should expect to see some legislator, somewhere in the legislative record, comment on the change—and that legislative silence therefore can be taken as a sign that the statute does not effect any radical departure from the status quo. Justice Ginsburg seems to be inferring, in a related vein, that the unanimity of the vote adopting RFRA may tell us something about congressional intent—i.e., that the statute does not take the controversial, politically-divisive step of covering profit corporations.
3. Ultimately, Baude comments that “It’s perilous to think that the vote total tells us that much about what a statute means.” I completely agree. Different legislators vote for (or against) a statute for many different reasons, and their final vote tells us nothing about those reasons. Of course, Justice Scalia often has made precisely this legislative process observation. (See, e.g., his rants against inferences based on rejected legislative proposals in Rapanos v. United States and Johnson v. Transportation Agency). So his comments in Shelby County are surprising, not just for their content, but also from a methodological standpoint.