On Tuesday I suggested that the Court probably wouldn't issue any more opinions until March. I ... was wrong. Today, the Court unloaded three opinions, each of which runs to over 30 pages. As a result, I'm splitting the discussion of the day into a couple of pieces to give each ruling the space for discussion it deserves. Here's a discussion of the first case - which is interesting more because of the jurisprudential approach taken by the 7-Justice majority on the one hand and Justice Breyer on the other hand. I'm not going to be especially gentle on Justice Breyer, who I believe is badly off base with his dissent and who gets his role as a judge exactly backwards, badly undercutting the cause of "living" Constitutional analysis in the process. To the opinion!
(Quick warning - this is quite long if you choose to read the whole thing - if you're going to skip anything, skip the last section which is based on my position rather than just including an explanation of the decision of the Court)
Jam v. International Finance Corp., 17-1011 (D.C. Circuit Court of Appeals)
MAJ: Roberts, joined by Thomas, Ginsburg, Alito, Sotomayor, Kagan, Gorsuch
DIS: Breyer
* Justice Kavanaugh did not participate in this opinion
Historically, sovereign entities enjoy a broad immunity from being sued in court. This is true both in domestic courts (the United States, for instance, cannot be sued by a citizen unless the lawsuit has been authorized by a law waiving sovereign immunity in that particular situation - for example, the Federal Tort Claims Act) and in international courts (a United States citizen cannot generally sue Germany, for example). The scope of this immunity has narrowed over time, and in the early 1950's the general immunity enjoyed by international sovereigns was eliminated in situations where the sovereign was engaged in commercial activity within the United States and acting as any other entity would in that situation. That general rule is still applicable today.
The early 20th Century, especially in the years following World War I and World War II, saw a significant increase in the development and power of international organizations. In some cases, the charters for these organizations made clear that they were to be immune from lawsuits in the courts of the sovereign states where they were operating. Since signatories to the treaties or agreements creating those organizations by definition were accepting the immunity provisions in the charters.
Not all organizations included such immunity provisions in their charters, however. This opened up the possibility that such international organizations would be subjected to lawsuits that could disrupt their ability to fulfill their purposes. Recognizing that international organizations needed some element of immunity, Congress passed the International Organizations Immunities Act of 1945 (IOIA), which established that these organizations would receive "the same immunity from suit ... as is enjoyed by foreign governments."
This case involves an organization called the International Finance Corporation, which finances development projects in poor countries. In this case, the IFC financed a coal-fired power plant project in India. The project did not go well, and now farmers and fishermen from a nearby village that suffered significant environmental impacts (pollution to air, land, and water) are suing the IFC for insufficient management of the project. The IFC argues that the suit should be dismissed for lack of jurisdiction since it holds immunity under the IOIA. The Petitioners, on the other hand, say that the IFC is engaged in commercial activity and so is subject to liability under the narrowed conception of sovereign immunity that has prevailed since the 1950's. The Supreme Court granted cert in order to resolve the question of how expansive the immunity provided under the IOIA is.
If you paid attention to the timeline mentioned above, you may have anticipated the problem. The statute granting immunity to International Organizations was passed in 1945, when international sovereigns had broad immunity essentially from all lawsuits. In the 1950's, that immunity was narrowed for international sovereigns to remove immunity when the sovereign was engaged in commercial activity. The IOIA statute was not adjusted, so the verbiage remained the same - international organizations receive "the same immunity from suit ... as is enjoyed by foreign governments." So, does that mean that the appropriate measure of immunity is the immunity enjoyed by foreign sovereigns at the time the statute was passed (i.e. very broad immunity from virtually all lawsuits), or does it mean that international organizations are to receive the same level of immunity as an international sovereign would receive at the time of a lawsuit (i.e. no immunity when the interntional organization is engaged in commercial activity)?
The DC Circuit Court of Appeals followed past precedent and determined that the the IOIA retained the same measure of immunity for international organizations as was enjoyed by international sovereigns at the time the law was originally passed. The majority opinion by Chief Justice Roberts overturned this decision and ruled instead that the measure of immunity provided by the IOIA is directly tied to the level of immunity enjoyed by sovereigns at the time of a lawsuit.
The opinion first recognizes that the language of the statute appears to place the immunity of international organizations and international sovereigns into ongoing parity by stating the immunity shall be the "same." This verbiage tracks that used in other statutes, such as the Civil Rights Act of 1866 (stating that freed slaves have the "same right" to make and enforce contracts and to buy and sell property as white citizens) and under the Federal Tort Claims Act (stating that the United States is subject to the "same liability" as citizens as a private individual under like circumstances). These statutes provided a moving target that tied one class of potential litigants to another class of litigants.
Further, it would have been very easy to provide absolute immunity to international organizations - they could have simply stated that such organizations enjoyed absolute immunity from suit, which they did in other provisions of the law such as a provision declaring the organizations to be "immune from search." Alternatively, it could have specifically cited a level of immunity that was currently in force in the law in order to ensure that the reach of immunity did not change.
Aside from this, the Court also applied a canon of statutory interpretation called the "reference" canon, which holds that when a particular a statute refers to a "general subject" it is intending to cite to whatever the law of that subject is at the time of a particular lawsuit, rather than intending to apply the law as it stands at the time the statute was passed. Alternatively, when a statute references another statute by specific title or section number, the statute is "cutting and pasting" the text of the statute as it stands at the time the statute is passed. This canon of interpretation bolsters the language analysis already referenced by the Court, reinforcing the majority's opinion.
The IFC raised a number of arguments to establish the problems associated with adopting the majority's position relating to the IOIA, but the Court dismissed them. First, the Court found that if the purposes of an international organization required immunity in order to function effectively, then the organization's charter could include an immunity provision directly such that formal recognition fo the organization would necessitate a granting of immunity. Second, specifically relating to lending operations such as those engaged in by the IFC, the Court argues that it is not clear that such activity even counts of commercial activity such that the narrowed immunity afforded international sovereigns (and now, international organizations) will prevent an immunity claim. Especially where, as in this case, the lending was done to a non-US based entity, such activity is likely outside the sphere of "commercial activity" as defined in immunity law, since such activity must explicitly have a nexus to the United States.
The end result was a near unanimous decision of the Court establishing that international organizations have exactly the same level of immunity as an international sovereign would have at the time of a given lawsuit (or more properly, tracking back to the time that the allegedly unlawful activity occured). The Court foreshadowed the likely end result of this case, however - while it has now been remanded to the DC Circuit to apply the new rule of law established today by the Court, the next step will be to see if there is immunity under the narrower interpretation of immunity that now applies. Since all of the activity in question occurred in India, and since it was involving purely lending activities, it likely is outstide of the scope of commercial activity that would subject the IFC to liability. The suit is therefore likely to fail.
Breyer's Dissent - As Applied to This Case
I'm breaking my analysis of Justice Breyer's dissent into two parts: first, how the dissent directly applies to this case; and second, what the dissent says about Justice Breyer's overall jurisprudence, and why he is badly wrong.
First, Justice Breyer views the Majority here as having mistakenly applied a "dynamic" interpretation of the meaning of the statutory provision rather than the "static" interpretation that he believes was more appropriate here. While the Majority uses a "linguistic" approach to analyze the statute and come to a final conclusion, Justice Breyer views that methodology as incomplete and unhelpful when it is divorced from the context in which the statute was passed. Justice Breyer states that "it is purpose, not words, that readily resolves any temporal linguistic ambiguity in that statute." [Emphasis in original]. Further setting up the direction of his analysis, Breyer states that "all interpretive roads lead us to the same place, namely, to context, to history, to purpose, and to consequences."
Moving to his analysis, Breyer states "in this case, historical context, purpose, and related consequences tell us a great deal about the proper interpretation of the Immunities Act." He then posits that based on an analysis of Congressional reports from the time, Congress passed the Immunities Act for two purposes: first, to fulfill its commitments as a member of international organizations; and second, to facilitate the functioning of international organizations within the United States. Further, these goals were part of an effort to get international organizations to locate their headquarters within the United States.
These purposes support the application of the strong immunity that was in place upon passage of the IOIA in 1945, rather than the narrower immunity that came into practice in the early 1950's. The consequences of narrowing that immunity, against the intentions of the Congress that passed the original legislation, are viewed by Breyer as potentially catastrophic. Since the "commercial activity" exception to immunity is potentially very broad, a large number of international organizations suddenly have been stripped of an immunity that they previously believed they held. Further, he views this ruling as an invitation to multiple lawsuits, many of which may be frivolous. Suddenly international organizations may be subject to liability in each of the states in which they operate, seriously undercutting their ability to do their work.
Justice Breyer would apply a static interpretation of the IOIA as more true to the intent of Congress when the statute was passed, as evinced by a historical analysis of the circumstances surrounding its passage.
Breyer's Dissent - Broader Importance
Make no mistake, Justice Breyer was thinking about his legacy when he wrote this dissent. He states in his closing that "My decision rests primarily not upon linguistic analysis, but upon basic statutory purposes. Lingustic methods alone, however artfully employed, too often can be used to justify opposite conclusions. Purposes, derived from context, informed by history, and tested by recognition of related consequences, will more often lead us to legally sound, workable interpretations ...".
This is a direct shot at textualism, and at the kind of jurisprudence that it a hallmark of the work done by Justice Gorsuch and which is at least heavily nodded at in the more originalist stylings of Justices Scalia and Thomas. I strongly suspect that Breyer plans on retiring in 2022 if a Democrat wins the Presidency in 2020, and this is the start of him laying down a lasting marker to represent his jurisprudence - whether it is a companion to or a replacement of his previous philosophy of "Active Liberty" remains to be seen as he articulates this more in depth moving forward - something I strongly suspect he will do.
Unfortunately, it's also completely wrong. It badly misunderstands the role of a judge. It fundamentally ignores the jurisprudential challenges associated with it. In so doing, this methodology endangers the very idea of a "living Constitution" and rather ironically reinforces some of the very underpinnings of originalist jurisprudence that Breyer has regularly fought against. This was an ill-conceived, poorly argued, weakly justified dissent that in my opinion diminishes Justice Breyer's legacy on the Court. I sincerely hope it is a stand alone effort, but as I've already said I think it is the beginning of a more concerted efforrt by Breyer to lay out a particular jurisprudential method that will serve as the capstone of his tenure on the Court.
Why my vitriol toward this dissent? Because it does not start from the text, it starts by asking for purpose. At first blush, that seems perfectly logical. Why wouldn't we want to look to the purpose Congress had when passing a statute? My answer will superficially make me seem like a pure textualist, but I assure you I am not. While I may start from the same underpinning, I would diverge from the likes of Justice Scalia and Gorsuch regularly. However, and importantly, I would agree with them in those situations where the text of legislation was clear - and frankly, so should every Justice.
This is true because it is the text, and not the intent, that governs the meaning of a statute. A badly drafted law cannot be saved by the Court simply looking at the Congressional Record and saying "well clearly, this isn't what Congress meant - even though there is plain language in this statute we will ignore it so as to enforce the Congressional purpose behind this legislation." That's an absurd position, and yet it is effectively what Justice Breyer is arguing for here.
Consider the question of what exactly Congressional Purpose is for any given piece of legislation. In some cases, it might be relatively simple. There may be a very simple piece of legislation with very little for anyone to dispute. It is possible, although unlikely, that everyone who votes for the legislation does so with but one purpose in mind, and that this purpose could easily be discerned. Take a bill renaming a post station, for instance (they actually do this all the time). You can probably get away with arguing that the purpose of each legislator in voting for the bill was to rename the post office and that there's not a lot going on as far as ulterior motives are concerned.
Of course, every bill is not a post office renaming, and whenever you start to talk about more complex bills with multiple provisions, you're going to have multiple points of view, and likely you will have as many individual "purposes" as you have members who voted "aye." Especially with more complex, controversial legislation the exact language is argued over exhaustively. Eventually, while everyone may come to some agreement on the text to be used, there is absolutely nothing that says their underlying purpose for enacting the legislation is the same, or even that they have the same understanding of the effect of the legislative language. All they have agreed to is the verbiage used.
Moreover, this isn't a defect of the process but simply an inevitable consequence of it. We are not monolithic creatures, and even within the most homogenous party there are going to be difference of opinions when it comes meaning and purpose, at least periodically. Seeking the legislative purpose, then, fundamentally mistakes the role of the judge and increases the possibility of a judge improperly putting a thumb on the scale to "interpret" unambiguous text in such a way that "better" matches the purpose that the judge has decided Congress had in passing the legislation. It is nothing less than bad judging.
There are myriad ways for Congress to assure that its purpose is followed, when it in fact has one. First, when there is in fact a clear, well-defined purpose, there is no excuse for bad legislative drafting. There are outstanding staffers present to assist with the legislative drafting process, and Congress is perfectly capable of saying exactly what it means when it wants to do so. If Congress is being unclear, it must be viewed as not accidental - either room is being left for the meaing of a particular provision to change over time (more on this shortly), or the vaguer language was required to forge a compromise necessary to pass the legislation (in which case, there almost certainly was not some clear "Congressional Purpose" that a majority of members had when voting for the legislation). Further, if Congress has a clear purpose and that clear purpose is thwarted through bad drafting and judicial interpretation that changes the effectiveness of the statute to accomplish its purpose, then Congress can always change the legislation. It is Congress, not the Supreme Court, that ultimately has the final say on legislation, as long as it does not run afoul of the Constitution and so long as the drafting is clear. Congress doesn't further need an advocate on the bench desperately seeking for the Congressional Purpose around the passage of legislation.
What's odd is that Breyer looks very much like an originalist here. In an attempt to bring in context and purpose, we are engaging in the same inquiry that an originalist would engage in. The difference is only one of degree - an originalist generally will look first to the text but will use purpose to limit and define the conclusions that can be drawn from that text. For instance, the Constitutional prohibition on "Cruel and Unusual Punishment" could not, in an originalist perspective, include a ban on capital punishment because the people who passed that Amendment were very much in favor of capital punishment being used in appropriate cases. This understanding places a boundary on the interpretation of that ambiguous phrase.
Justice Breyer's philsophical approach to interpretation as laid out in this case suggests that he, too, would go back to this purpose to find his understanding of the term. I daresay that differs from his past practice, and I strongly suspect that he would wiggle out of this problematic position by arguing that the purpose of Congress was as broad as the language used, and that those who passed the Amendment had some sort of metaphysical purpose of "banning those things which at any given time in our history are considered cruel and unusual at that time." Good luck trying to prove something like that to any reasonable degree.
I certainly sound like a textualist here, but at a basic level we all must be textualists. Divorced from text, the work of the judiciary would be to try to ascertain meaning or purpose in the texts passed by Congress. That is fundamentally a Legislative inquiry, not a Judicial one. Justice Breyer is wrong to focus his inquiry on legislative purpose.
Finally, a brief note on how my version of textualism differs from that practiced (at least occasionally) by Justice Scalia and (more frequently) by Justice Gorsuch. While a full articulation of my position would probably be book length, I will limit the comparison here to one example that I think is pretty clear. We'll stick with the "Cruel and unusual" example that came up in the preceeding paragraphs. For both a textualist and an originalist, the initial inquiry would be on the language itself, and we would all probably agree that it is ambiguous. Cruel and unusual by itself doesn't mean anything. However, while both textualists and originalists would look to the 18th Century drafters to determine meaning, I would argue that the drafters had the capacity to understand what they were doing, and wrote in provisions that could fluctuate in meaning over time.
It is disappointing that as he lays out his vision for statutory interpretation, Justice Breyer moves closer and closer to what is essentially an originalist position. I sincerely hope that he reconsiders his position.
(Quick warning - this is quite long if you choose to read the whole thing - if you're going to skip anything, skip the last section which is based on my position rather than just including an explanation of the decision of the Court)
Jam v. International Finance Corp., 17-1011 (D.C. Circuit Court of Appeals)
MAJ: Roberts, joined by Thomas, Ginsburg, Alito, Sotomayor, Kagan, Gorsuch
DIS: Breyer
* Justice Kavanaugh did not participate in this opinion
Historically, sovereign entities enjoy a broad immunity from being sued in court. This is true both in domestic courts (the United States, for instance, cannot be sued by a citizen unless the lawsuit has been authorized by a law waiving sovereign immunity in that particular situation - for example, the Federal Tort Claims Act) and in international courts (a United States citizen cannot generally sue Germany, for example). The scope of this immunity has narrowed over time, and in the early 1950's the general immunity enjoyed by international sovereigns was eliminated in situations where the sovereign was engaged in commercial activity within the United States and acting as any other entity would in that situation. That general rule is still applicable today.
The early 20th Century, especially in the years following World War I and World War II, saw a significant increase in the development and power of international organizations. In some cases, the charters for these organizations made clear that they were to be immune from lawsuits in the courts of the sovereign states where they were operating. Since signatories to the treaties or agreements creating those organizations by definition were accepting the immunity provisions in the charters.
Not all organizations included such immunity provisions in their charters, however. This opened up the possibility that such international organizations would be subjected to lawsuits that could disrupt their ability to fulfill their purposes. Recognizing that international organizations needed some element of immunity, Congress passed the International Organizations Immunities Act of 1945 (IOIA), which established that these organizations would receive "the same immunity from suit ... as is enjoyed by foreign governments."
This case involves an organization called the International Finance Corporation, which finances development projects in poor countries. In this case, the IFC financed a coal-fired power plant project in India. The project did not go well, and now farmers and fishermen from a nearby village that suffered significant environmental impacts (pollution to air, land, and water) are suing the IFC for insufficient management of the project. The IFC argues that the suit should be dismissed for lack of jurisdiction since it holds immunity under the IOIA. The Petitioners, on the other hand, say that the IFC is engaged in commercial activity and so is subject to liability under the narrowed conception of sovereign immunity that has prevailed since the 1950's. The Supreme Court granted cert in order to resolve the question of how expansive the immunity provided under the IOIA is.
If you paid attention to the timeline mentioned above, you may have anticipated the problem. The statute granting immunity to International Organizations was passed in 1945, when international sovereigns had broad immunity essentially from all lawsuits. In the 1950's, that immunity was narrowed for international sovereigns to remove immunity when the sovereign was engaged in commercial activity. The IOIA statute was not adjusted, so the verbiage remained the same - international organizations receive "the same immunity from suit ... as is enjoyed by foreign governments." So, does that mean that the appropriate measure of immunity is the immunity enjoyed by foreign sovereigns at the time the statute was passed (i.e. very broad immunity from virtually all lawsuits), or does it mean that international organizations are to receive the same level of immunity as an international sovereign would receive at the time of a lawsuit (i.e. no immunity when the interntional organization is engaged in commercial activity)?
The DC Circuit Court of Appeals followed past precedent and determined that the the IOIA retained the same measure of immunity for international organizations as was enjoyed by international sovereigns at the time the law was originally passed. The majority opinion by Chief Justice Roberts overturned this decision and ruled instead that the measure of immunity provided by the IOIA is directly tied to the level of immunity enjoyed by sovereigns at the time of a lawsuit.
The opinion first recognizes that the language of the statute appears to place the immunity of international organizations and international sovereigns into ongoing parity by stating the immunity shall be the "same." This verbiage tracks that used in other statutes, such as the Civil Rights Act of 1866 (stating that freed slaves have the "same right" to make and enforce contracts and to buy and sell property as white citizens) and under the Federal Tort Claims Act (stating that the United States is subject to the "same liability" as citizens as a private individual under like circumstances). These statutes provided a moving target that tied one class of potential litigants to another class of litigants.
Further, it would have been very easy to provide absolute immunity to international organizations - they could have simply stated that such organizations enjoyed absolute immunity from suit, which they did in other provisions of the law such as a provision declaring the organizations to be "immune from search." Alternatively, it could have specifically cited a level of immunity that was currently in force in the law in order to ensure that the reach of immunity did not change.
Aside from this, the Court also applied a canon of statutory interpretation called the "reference" canon, which holds that when a particular a statute refers to a "general subject" it is intending to cite to whatever the law of that subject is at the time of a particular lawsuit, rather than intending to apply the law as it stands at the time the statute was passed. Alternatively, when a statute references another statute by specific title or section number, the statute is "cutting and pasting" the text of the statute as it stands at the time the statute is passed. This canon of interpretation bolsters the language analysis already referenced by the Court, reinforcing the majority's opinion.
The IFC raised a number of arguments to establish the problems associated with adopting the majority's position relating to the IOIA, but the Court dismissed them. First, the Court found that if the purposes of an international organization required immunity in order to function effectively, then the organization's charter could include an immunity provision directly such that formal recognition fo the organization would necessitate a granting of immunity. Second, specifically relating to lending operations such as those engaged in by the IFC, the Court argues that it is not clear that such activity even counts of commercial activity such that the narrowed immunity afforded international sovereigns (and now, international organizations) will prevent an immunity claim. Especially where, as in this case, the lending was done to a non-US based entity, such activity is likely outside the sphere of "commercial activity" as defined in immunity law, since such activity must explicitly have a nexus to the United States.
The end result was a near unanimous decision of the Court establishing that international organizations have exactly the same level of immunity as an international sovereign would have at the time of a given lawsuit (or more properly, tracking back to the time that the allegedly unlawful activity occured). The Court foreshadowed the likely end result of this case, however - while it has now been remanded to the DC Circuit to apply the new rule of law established today by the Court, the next step will be to see if there is immunity under the narrower interpretation of immunity that now applies. Since all of the activity in question occurred in India, and since it was involving purely lending activities, it likely is outstide of the scope of commercial activity that would subject the IFC to liability. The suit is therefore likely to fail.
Breyer's Dissent - As Applied to This Case
I'm breaking my analysis of Justice Breyer's dissent into two parts: first, how the dissent directly applies to this case; and second, what the dissent says about Justice Breyer's overall jurisprudence, and why he is badly wrong.
First, Justice Breyer views the Majority here as having mistakenly applied a "dynamic" interpretation of the meaning of the statutory provision rather than the "static" interpretation that he believes was more appropriate here. While the Majority uses a "linguistic" approach to analyze the statute and come to a final conclusion, Justice Breyer views that methodology as incomplete and unhelpful when it is divorced from the context in which the statute was passed. Justice Breyer states that "it is purpose, not words, that readily resolves any temporal linguistic ambiguity in that statute." [Emphasis in original]. Further setting up the direction of his analysis, Breyer states that "all interpretive roads lead us to the same place, namely, to context, to history, to purpose, and to consequences."
Moving to his analysis, Breyer states "in this case, historical context, purpose, and related consequences tell us a great deal about the proper interpretation of the Immunities Act." He then posits that based on an analysis of Congressional reports from the time, Congress passed the Immunities Act for two purposes: first, to fulfill its commitments as a member of international organizations; and second, to facilitate the functioning of international organizations within the United States. Further, these goals were part of an effort to get international organizations to locate their headquarters within the United States.
These purposes support the application of the strong immunity that was in place upon passage of the IOIA in 1945, rather than the narrower immunity that came into practice in the early 1950's. The consequences of narrowing that immunity, against the intentions of the Congress that passed the original legislation, are viewed by Breyer as potentially catastrophic. Since the "commercial activity" exception to immunity is potentially very broad, a large number of international organizations suddenly have been stripped of an immunity that they previously believed they held. Further, he views this ruling as an invitation to multiple lawsuits, many of which may be frivolous. Suddenly international organizations may be subject to liability in each of the states in which they operate, seriously undercutting their ability to do their work.
Justice Breyer would apply a static interpretation of the IOIA as more true to the intent of Congress when the statute was passed, as evinced by a historical analysis of the circumstances surrounding its passage.
Breyer's Dissent - Broader Importance
Make no mistake, Justice Breyer was thinking about his legacy when he wrote this dissent. He states in his closing that "My decision rests primarily not upon linguistic analysis, but upon basic statutory purposes. Lingustic methods alone, however artfully employed, too often can be used to justify opposite conclusions. Purposes, derived from context, informed by history, and tested by recognition of related consequences, will more often lead us to legally sound, workable interpretations ...".
This is a direct shot at textualism, and at the kind of jurisprudence that it a hallmark of the work done by Justice Gorsuch and which is at least heavily nodded at in the more originalist stylings of Justices Scalia and Thomas. I strongly suspect that Breyer plans on retiring in 2022 if a Democrat wins the Presidency in 2020, and this is the start of him laying down a lasting marker to represent his jurisprudence - whether it is a companion to or a replacement of his previous philosophy of "Active Liberty" remains to be seen as he articulates this more in depth moving forward - something I strongly suspect he will do.
Unfortunately, it's also completely wrong. It badly misunderstands the role of a judge. It fundamentally ignores the jurisprudential challenges associated with it. In so doing, this methodology endangers the very idea of a "living Constitution" and rather ironically reinforces some of the very underpinnings of originalist jurisprudence that Breyer has regularly fought against. This was an ill-conceived, poorly argued, weakly justified dissent that in my opinion diminishes Justice Breyer's legacy on the Court. I sincerely hope it is a stand alone effort, but as I've already said I think it is the beginning of a more concerted efforrt by Breyer to lay out a particular jurisprudential method that will serve as the capstone of his tenure on the Court.
Why my vitriol toward this dissent? Because it does not start from the text, it starts by asking for purpose. At first blush, that seems perfectly logical. Why wouldn't we want to look to the purpose Congress had when passing a statute? My answer will superficially make me seem like a pure textualist, but I assure you I am not. While I may start from the same underpinning, I would diverge from the likes of Justice Scalia and Gorsuch regularly. However, and importantly, I would agree with them in those situations where the text of legislation was clear - and frankly, so should every Justice.
This is true because it is the text, and not the intent, that governs the meaning of a statute. A badly drafted law cannot be saved by the Court simply looking at the Congressional Record and saying "well clearly, this isn't what Congress meant - even though there is plain language in this statute we will ignore it so as to enforce the Congressional purpose behind this legislation." That's an absurd position, and yet it is effectively what Justice Breyer is arguing for here.
Consider the question of what exactly Congressional Purpose is for any given piece of legislation. In some cases, it might be relatively simple. There may be a very simple piece of legislation with very little for anyone to dispute. It is possible, although unlikely, that everyone who votes for the legislation does so with but one purpose in mind, and that this purpose could easily be discerned. Take a bill renaming a post station, for instance (they actually do this all the time). You can probably get away with arguing that the purpose of each legislator in voting for the bill was to rename the post office and that there's not a lot going on as far as ulterior motives are concerned.
Of course, every bill is not a post office renaming, and whenever you start to talk about more complex bills with multiple provisions, you're going to have multiple points of view, and likely you will have as many individual "purposes" as you have members who voted "aye." Especially with more complex, controversial legislation the exact language is argued over exhaustively. Eventually, while everyone may come to some agreement on the text to be used, there is absolutely nothing that says their underlying purpose for enacting the legislation is the same, or even that they have the same understanding of the effect of the legislative language. All they have agreed to is the verbiage used.
Moreover, this isn't a defect of the process but simply an inevitable consequence of it. We are not monolithic creatures, and even within the most homogenous party there are going to be difference of opinions when it comes meaning and purpose, at least periodically. Seeking the legislative purpose, then, fundamentally mistakes the role of the judge and increases the possibility of a judge improperly putting a thumb on the scale to "interpret" unambiguous text in such a way that "better" matches the purpose that the judge has decided Congress had in passing the legislation. It is nothing less than bad judging.
There are myriad ways for Congress to assure that its purpose is followed, when it in fact has one. First, when there is in fact a clear, well-defined purpose, there is no excuse for bad legislative drafting. There are outstanding staffers present to assist with the legislative drafting process, and Congress is perfectly capable of saying exactly what it means when it wants to do so. If Congress is being unclear, it must be viewed as not accidental - either room is being left for the meaing of a particular provision to change over time (more on this shortly), or the vaguer language was required to forge a compromise necessary to pass the legislation (in which case, there almost certainly was not some clear "Congressional Purpose" that a majority of members had when voting for the legislation). Further, if Congress has a clear purpose and that clear purpose is thwarted through bad drafting and judicial interpretation that changes the effectiveness of the statute to accomplish its purpose, then Congress can always change the legislation. It is Congress, not the Supreme Court, that ultimately has the final say on legislation, as long as it does not run afoul of the Constitution and so long as the drafting is clear. Congress doesn't further need an advocate on the bench desperately seeking for the Congressional Purpose around the passage of legislation.
What's odd is that Breyer looks very much like an originalist here. In an attempt to bring in context and purpose, we are engaging in the same inquiry that an originalist would engage in. The difference is only one of degree - an originalist generally will look first to the text but will use purpose to limit and define the conclusions that can be drawn from that text. For instance, the Constitutional prohibition on "Cruel and Unusual Punishment" could not, in an originalist perspective, include a ban on capital punishment because the people who passed that Amendment were very much in favor of capital punishment being used in appropriate cases. This understanding places a boundary on the interpretation of that ambiguous phrase.
Justice Breyer's philsophical approach to interpretation as laid out in this case suggests that he, too, would go back to this purpose to find his understanding of the term. I daresay that differs from his past practice, and I strongly suspect that he would wiggle out of this problematic position by arguing that the purpose of Congress was as broad as the language used, and that those who passed the Amendment had some sort of metaphysical purpose of "banning those things which at any given time in our history are considered cruel and unusual at that time." Good luck trying to prove something like that to any reasonable degree.
I certainly sound like a textualist here, but at a basic level we all must be textualists. Divorced from text, the work of the judiciary would be to try to ascertain meaning or purpose in the texts passed by Congress. That is fundamentally a Legislative inquiry, not a Judicial one. Justice Breyer is wrong to focus his inquiry on legislative purpose.
Finally, a brief note on how my version of textualism differs from that practiced (at least occasionally) by Justice Scalia and (more frequently) by Justice Gorsuch. While a full articulation of my position would probably be book length, I will limit the comparison here to one example that I think is pretty clear. We'll stick with the "Cruel and unusual" example that came up in the preceeding paragraphs. For both a textualist and an originalist, the initial inquiry would be on the language itself, and we would all probably agree that it is ambiguous. Cruel and unusual by itself doesn't mean anything. However, while both textualists and originalists would look to the 18th Century drafters to determine meaning, I would argue that the drafters had the capacity to understand what they were doing, and wrote in provisions that could fluctuate in meaning over time.
It is disappointing that as he lays out his vision for statutory interpretation, Justice Breyer moves closer and closer to what is essentially an originalist position. I sincerely hope that he reconsiders his position.
