All posts by Anita Krishnakumar

Some Brief Thoughts on Gorsuch’s Opinion in NFIB v. OSHA

There is much to say about the Court’s opinions in NFIB v. OSHA staying the Occupational Safety and Health Administration’s emergency rule requiring employers with at least 100 employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.” But I’d like to focus in this post on how stunningly atextual Justice Gorsuch’s concurring opinion (and for that matter, the per curiam opinion) was. Gorsuch’s concurring opinion in particular is almost entirely about the major questions doctrine—which he formulates as a rule that “We expect Congress to speak clearly if it wishes to assign to an executive agency decisions of vast economic and political significance.” The major questions doctrine is a substantive policy canon that limits the delegation of power from the legislative to the executive branch. It is not a textual canon but, rather, a normative one—as are all substantive canons at bottom. (Justice Scalia himself recognized this, calling such policy canons “dice-loading rules” that are “a lot of trouble” to “the honest textualist” in his influential Tanner Lectures, later published as a book.).

But textualists, and other jurists, have long relied on substantive canons to tip the scales in statutory cases; so what is truly stunning about Justice Gorsuch’s opinion is not its invocation of the major questions doctrine, but its complete lack of any accompanying textual analysis. Usually, when the Justices invoke a substantive canon, they also at least attempt to analyze the statute’s text—even if only to conclude that the text is ambiguous, thereby (conveniently) necessitating recourse to a substantive canon. But neither Justice Gorsuch’s opinion nor the per curiam opinion in NFIB v. OSHA attempts even the pretext of such textual analysis. There is no careful parsing or discussion of the ordinary meaning of the OSH Act provision that authorizes OSHA to issue “emergency” regulations upon determining “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” There are no dictionary definitions of the statutory terms “emergency,” “substances,” “agents,” “physically harmful,” or “new hazards.” One must look to the dissenting opinion authored by Justices Kagan, Breyer, and Sotomayor for such close textual analysis of the relevant OSH Act language and accompanying dictionary definitions. The closest either the per curiam or Justice Gorsuch’s concurring opinions comes to any textual analysis of the operative statutory terms is a handful of ipse-dixit sentences in the per curiam opinion that repeat (and italicize) the term “occupational”—the implication being, presumably, that that term so obviously does not apply to hazards from a highly transmissible infectious disease that spreads when individuals come into close contact with each other, as happens regularly at indoor workplaces, as to eliminate the need for any analysis.

Aside from its lack of close textual analysis, Justice Gorsuch’s concurring opinion also incongruently invokes a number of decidedly atextual interpretive tools and methods of argument that textualists (and originalists) usually denigrate. Most notably, Justice Gorsuch points to the inaction of the present-day Congress in the two years since the pandemic began as evidence of a lack of legislative intent to authorize OSHA (or any federal agency) to issue a vaccine mandate. Textualists usually deplore such uses of legislative inaction to infer statutory meaning and deny the relevance of legislative intent altogether—moreover, in keeping with their originalist focus on the ordinary meaning of statutory terms at the time the statute was enacted, they reject any references to what contemporary legislators might think a statute means. If this weren’t bad enough, Justice Gorsuch then cites a 2021 Senate resolution disapproving the regulation at issue, a form of subsequent legislative history, or “statutory history” as I and others have called it, that is in fundamental tension with textualism’s theoretical critique of legislative history. (Problems, from a textualist point of view, with reliance on the Senate resolution include that it was adopted by only one chamber of Congress and was not signed into law by the President—thereby failing to meet the bicameralism and presentment requirements articulated in Article I, Section 7 of the Constitution.) All of this is done, again, in lieu of closely parsing the text enacted by the Congress that drafted and passed the OSH Act in 1970.

Last, Justice Gorsuch’s opinion makes a distinctly functionalist argument against the validity of OSHA’s regulation, observing that since the emergency provision of the OSH Act at issue was enacted some 50 years ago, “OSHA has relied on it to issue only comparatively modest rules addressing dangers uniquely prevalent inside the workplace, like asbestos and rare chemicals.” This appeal to past practice again, is strikingly at odds with the formalist, text-based approach that textualist jurists usually take to such administrative law questions.

So what to make of the Court’s, and especially Justice Gorsuch’s, total abandonment of textual analysis in this case? I am not cynical by nature and typically resist partisan, cynical readings of the Court’s statutory cases, but it is hard to view this case as anything other than a sign that at least in high-stakes political cases, the conservative Justices on the modern Roberts Court no longer feel the need to follow a textualist or formalist approach to statutory interpretation even as a pretext to justify reaching their preferred interpretive outcomes.

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Statutory Interpretation Case Decided Today

Today the U.S. Supreme Court handed down a unanimous decision in Terry v. United States, interpreting the First Step Act.

Scotusblog commentary is here and begins as follows:

Justices reject sentencing reductions for some crack-cocaine offenders

The Supreme Court unanimously ruled on Monday that people convicted of certain low-level crack-cocaine offenses are not eligible for sentencing reductions under the First Step Act, a 2018 law that made some criminal-justice reforms retroactive. Justice Clarence Thomas wrote the opinion for the court in Terry v. United States.

In my view, the most interesting thing about the Court’s opinions is Justice Sotomayor’s lengthy footnote explaining that she refuses to join Part I (i.e., the facts and background section of the opinion!) because “it includes an unnecessary, incomplete, and sanitized history of the 100-to-1 ratio [for crack versus powder cocaine sentences].” The footnote is noteworthy both for its frank acknowledgment of the racial implications of the ratio and because of how rare it is for individual Justices to refuse to join Part I of a statutory interpretation opinion. Indeed, Justice Sotomayor’s refusal calls to mind another memorable Part I in a statutory interpretation case that two majority-opinion-joining Justices refused to sign onto: Justice Blackmun’s majority opinion in Flood v. Kuhn, the baseball case that famously began with a Part I that was essentially an Ode to Baseball. Thomas’s Part I in Terry v. United States is no Ode to the 100-to-1 ratio, but it joins Justice Blackmun’s Part I in Flood as a rare example of a background section that offended sufficiently to prompt judicial distancing.

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Legislation News

Court limits definition of “violent felony” in federal gun-possession penalty


A fractured Supreme Court on Thursday narrowed the scope of a key phrase in the Armed Career Criminal Act, ruling that crimes involving recklessness do not count as “violent felonies” for the purpose of triggering a key sentencing enhancement.

Justice Elena Kagan announced the judgment of the court and wrote an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch. Justice Clarence Thomas did not join Kagan’s opinion but concurred in the result. That means that five justices rejected the federal government’s more expansive interpretation of the term “violent felony” and handed a victory to a criminal defendant who argued that the sentencing enhancement did not apply to his conduct.

The case, Borden v. United States, involved a provision of ACCA that imposes a 15-year minimum sentence on anyone convicted of being a felon in possession of a firearm if the person has three or more prior convictions for a “violent felony.” The term “violent felony” is defined, in relevant part, as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Nothing terribly noteworthy in the case. What I was most struck by is the snark level in Justice Kagan’s plurality and Justice Kavanaugh’s dissenting opinions. This is not polite disagreement; it’s vehement, in-your-face disagreement. Unfortunately, this seems to be increasingly par for the course for the Court (in its statutory cases at least). I’ll also just note the plurality’s emphasis on grammar rules — i.e., the fact that the “against another person” phrase modifies the “use of force” phrase. It feels, anecdotally, like the Court is placing more and more emphasis on grammar-based arguments lately.

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Two new statutory interpretation decisions issued today

The Supreme Court today issued two short opinions interpreting two very different statutes:

United States v. Palomar-Santiago (Immigration statutes)

and Territory of Guam v. United States (CERCLA)

Both opinions were unanimous and highly textual in their analysis. Palomar-Santiago, authored by Justice Sotomayor, relied heavily on the use of the word “and” while the Court’s opinion in Guam v. United States opinion, authored by Justice Thomas, relied heavily on the “interlocking language and structure of the relevant text” and other whole act rule type arguments. Justice Thomas’ opinion in Guam v. United States also, notably, invoked the belt-and-suspenders canon that James Brudney and Ethan Leib have written about to reject competing whole act rule (superfluity) arguments.

It’s early, but some analysis and coverage of the opinions can be found here:


Unanimous court revives Guam’s Superfund claim against U.S. Navy

The Supreme Court on Monday sided with Guam in its dispute with the federal government over the cleanup costs of toxic waste on the island. Justice Clarence Thomas wrote the opinion for a unanimous court just four weeks after oral argument in the case.

Court rejects non-citizen’s challenge to “unlawful re-entry” charge

The Supreme Court on Monday unanimously ruled against a non-U.S. citizen who was contesting his indictment for unlawful re-entry into the country. The case, United States v. Palomar-Santiago, involved Refugio Palomar-Santiago, a Mexican citizen who obtained lawful permanent residency in the United States in 1990. Eight years later, he was deported on the basis of a California conviction for driving under the influence. But after his deportation, the Supreme Court ruled in Leocal v. Ashcroft that, under the relevant federal statute, DUI convictions do not provide grounds for the removal of people like Palomar-Santiago.

The Washington Post:

Supreme Court: Guam can pursue $160M dump cleanup lawsuit

The Supreme Court says the U.S. territory of Guam can pursue a $160 million lawsuit against the federal government over the cost of cleaning up a landfill on the island. The justices on Monday unanimously overturned a lower court decision that had said Guam had waited too long to pursue the claim.

Bloomberg News:

Top Court Revives Guam’s Superfund Cost Claim Against U.S.

Guam may pursue a Superfund cost recovery claim against the federal government for a $160 million landfill cleanup as its action was timely, the U.S. Supreme Court said Monday in a significant victory for the territory. In a unanimous decision, the justices reversed a lower court and said Guam isn’t time-barred from pursuing the claim. “We are thrilled with the Court’s decision in favor of Guam today, which paves the way for the United States to pay its fair share for the cleanup of the Ordot Dump,” Latham & Watkins lawyer Greg Garre, representing Guam, said in an email.

Law & Crime:

Supreme Court Justices Again Unanimous Twice in the Same Day

The Supreme Court of the United States handed down two unanimous decisions Monday — making the total a whopping four 9-0 decisions in a week’s time.

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Howard Law Seeking a Visitor for AY 2017-2018

The Howard University School of Law invites applications for a visiting professor position for AY 2017-2018. The visitor should be able to teach some of the following courses: environmental law, administrative law, property, and legislation. Candidates should have a juris doctorate and teaching experience. Interested persons should send a CV and subject area preferences to Associate Dean Lisa Crooms-Robinson ([email protected]) or Prof. Josephine Ross, Initial Appointments Committee, c/o Donnice Butler, 2900 Van Ness Street NW, Washington, DC 20008 or, by email, to [email protected] (electronic submissions preferred).

Howard University School of Law is committed to a diverse faculty, staff, and student body. Applications from women, minorities, persons with disabilities, and others whose background, experience, and viewpoints contribute to the diversity of our institution are encouraged.

Howard University is an Equal Opportunity Employer and does not discriminate on the base of race, color, religion, sex, national origin, age, disability, genetics, sexual orientation, gender, or veteran status.

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Re: From the Hobby Lobby oral argument: Should legislation passed by unanimous vote be invalidated or narrowly construed?

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.

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Practical Consequences and Missing Legislative History in Mississippi ex rel. Hood v. AU Optronics Corporation

This past week, the Supreme Court issued a decision in a seemingly straightforward case that involved some noteworthy statutory interpretation maneuvers (and omissions): Mississippi ex rel. Hood v. AU Optronics Corporation.  The State of Mississippi sued manufacturers of liquid crystal displays (LCDs) in state court for alleged antitrust violations, seeking restitution for LCD purchases made both by itself and by its citizens.  The LCD manufacturers sought to remove the case to federal court, arguing that the lawsuit is a “mass action” under the Class Action Fairness Act of 2005 (“CAFA”).  CAFA defines a “mass action” to mean “any civil action … in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact”—and significantly relaxes diversity jurisdiction requirements for such actions.

So the statutory interpretation issue is whether a lawsuit brought by a State, which seeks damages for injuries suffered by a large number of the State’s citizens—but which does not name any of the State’s citizens as plaintiffs—qualifies as a “mass action” under CAFA.

The Fifth Circuit concluded that it does, reading the words “persons” and “plaintiffs” to refer to the “real parties in interest” in a lawsuit.  The Supreme Court last week unanimously reversed, holding that because Mississippi is the only named plaintiff in the lawsuit, the suit does not count as a “mass action.”  Justice Sotomayor’s opinion for the Court relies heavily on the whole act rule, ordinary meaning, a sprinkling of dictionary definitions, and an analogy to how the terms “persons” and “plaintiffs” are used in Federal Rule of Civil Procedure 20.  The opinion then turns to a practical consequences argument about the “administrative nightmare” that would result if it were to read the term “plaintiffs” to include unnamed real parties in interest in the lawsuit.  (The Court worries, inter alia, that such a construction would force district courts to engage in unwieldy factual inquiries in order to identify unnamed parties in interest whose claims are for less than $75,000, since CAFA allows “mass action” diversity jurisdiction only for plaintiffs whose claims exceed this amount.  “How is a district court to identify [such] unnamed parties?”  the Court asks.  “Would [it] have to hold an evidentiary hearing to determine the identity of each of the hundreds of thousands of unnamed Mississippi citizens who purchased one of respondent’s LCD products between 1996 and 2006? Even if it could identify every such person, how would it ascertain the amount in controversy for each individual claim?”).

We have seen this kind of practical consequences argument from the Roberts Court before, in another case involving diversity jurisdiction.  In the 2010 case, Hertz Corp v. Friend, the Court similarly emphasized the need for administrative simplicity when giving meaning to jurisdictional statutes.  I have previously discussed this form of practical consequences argument, calling it an “anti-messiness” principle and noting its prevalence in many statutory interpretation cases.  Here, I am particularly interested in the unanimity that the Court’s anti-messiness focus helped it achieve. The Court is not always unanimous when construing jurisdictional statutes, but it often decides such cases by a wide margin.  (My empirical research shows that the Roberts Court tends to reach unanimity in roughly half of its cases involving jurisdictional statutes, and to be closely divided in only 10% of such cases).  So what, if anything, explains the Court’s high levels of consensus in jurisdictional cases, or at least its unanimity in Hertz and AU Optronics?

I think the answer lies in a unique convergence that occurs in jurisdictional cases, perhaps especially in cases involving diversity jurisdiction.  What I mean is that in cases involving jurisdictional statutes, judicial concerns about fulfilling a statute’s policy objectives tend to merge with judicial concerns about administrability (e.g., the interpretation’s effect on judicial resources, the difficulty of implementing it, and the clarity and predictability of the rule it establishes).

Some justices on the Roberts Court care a lot about ensuring that any statutory interpretation they adopt will be relatively easy to administer and will fit coherently within the framework of legal rules surrounding it.  But other justices on the Court seem to care more about fulfilling the policy objectives of the particular statute that they are interpreting, and making sure that that statute is given an internally coherent and consistent meaning.  I have elsewhere described this coherence divide in detail.  But I think it plays out in interesting ways in cases involving jurisdictional statutes, for a number of reasons:  Jurisdictional statutes by their nature seek to organize the judicial system, drawing lines that establish which cases may be heard in which venues.  If the inquiry required to implement a jurisdictional statute becomes too complicated, or “messy,” disorganization results and the entire judicial system suffers—as multiple courts grapple with the threshold question of where a case may be heard, before they even get to the substantive issues raised in the case.  In other words, because jurisdictional statutes are designed to organize the judicial system, simplicity, clarity, and predictability are key to their effectiveness.  As a result, all jurists confronted with the application of a jurisdictional statute tend to focus, at least to some extent, on administrability concerns when deciding how best to interpret the statute—even those jurists who do not ordinarily privilege predictability, clarity, and other such rule of law values when interpreting statutes.  Perhaps another way to put it is that with jurisdictional statutes, there is rarely conflict between the underlying policy of the statute and administrability concerns, because ease of administration is part of the statute’s purpose.  So when one interpretation of a jurisdictional statute is significantly easier to administer than others (or when one interpretation is an “administrative nightmare” to implement), the Justices find it relatively easy to agree upon the easier-to-administer interpretation.

Missing Legislative History?

Also noteworthy in AU Optronics is the Court’s failure to make any reference to some helpful, on-point legislative history.  Specifically, the Senate committee report on CAFA describes “mass actions” as “suits that are brought on behalf of numerous named plaintiffs who claim that their suits present common questions of law or fact that should be tried together even though they do not seek class certification status.”  (My emphasis).  This definition provides strong support for the Court’s conclusion that a lawsuit brought by a State as sole named plaintiff cannot qualify as a “mass action,” even if the action is based on injuries to numerous unnamed citizens of the State.  The Mississippi Attorney General’s brief highlighted this helpful legislative history, and Justice Ginsburg referenced it at oral argument.  Yet there is no mention whatsoever of the committee report, or of any other legislative history, in the Court’s opinion—not even a passing statement that the legislative history corroborates the Court’s construction.  This omission is noteworthy, I think, given the Court’s—and particularly opinion author Justice Sotomayor’s—willingness to make corroborative legislative history references in other cases.  One possible explanation for the Court’s omission is that the Senate report was issued ten days after CAFA was signed into law by the President—so it cannot be said to have influenced members’ votes on the bill.  A majority of the Court previously has rejected legislative history that was inserted into the record after a bill was enacted into law (See Hamdan v. Rumsfeld – there, floor statements).  But the Court at least discussed the after-the-fact legislative history in that case.  Here, the lack of mention and lack of debate about the value of the committee report strikes me as interesting.  Statements made in a committee report issued shortly after a statute’s enactment may not have been relied upon by those voting for the law, but they do reflect the understanding of those who drafted the statute and who are most familiar with its components, so it seems odd that at least some of the justices did not find the Senate report’s statements worth noting.

In the end, I am left wondering whether the Court’s failure to mention the Senate report in this case reflects an overall judgment that committee reports dated after a statute’s enactment are not good or useful legislative history, or whether the Court’s omission was a strategic one, designed to protect unanimity in this case?  Did the Court decline to mention the after-the-fact committee report because of a desire to avoid controversy, or to retain Justice Scalia’s vote (what James Brudney has called the “Scalia Effect”)—or did it do so because it has decided that committee reports issued after a law is enacted lack credibility?

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