I appreciated Justice Thissen’s article ("When Rules Get in the Way of Reason," Bench & Bar Nov. 2019) on principles and methods of statutory construction. I, too, am concerned about overly mechanical – or in some cases, pseudo-plain-text – interpretations of statutory language. Justice Thissen aptly points out that when competing interpretations of a statute assert themselves as “plain meaning” interpretations – a competition found in published opinions as well as parties’ briefs and memoranda – something is amiss.
Nevertheless, I need to dissent in part. I think Justice Scalia rightly took the federal circuit judges to task in a concurring opinion when he wondered “whether our legal culture has so far departed from attention to text, or is so lacking in agreed-upon methodology for creating and interpreting text, that it any longer makes sense to talk of ‘a government of laws, not of men.’” Patterson v. Shumate, 504 U.S. 753, 766, 112 S. Ct. 2242, 2250–51, 119 L. Ed. 2d 519 (1992). Although I am anything but Scalia’s fellow-traveler in most respects, that case illustrates his point and justifies his rhetoric.
The issue in Patterson was whether a person filing bankruptcy could protect his/her interest in an employer-sponsored pension plan. Bankruptcy law (11 U.S.C. 541(c)(2)) specifies that to the extent that nonbankruptcy law restricts transfer of an asset, it also prevents an asset from becoming a part of the debtor’s bankruptcy estate. ERISA (29 U.S.C. 1056(d)) contains a clear and unmistakable prohibition on the transfer of pension rights. Nevertheless, many of the federal circuits and lower courts rejected that law and looked elsewhere for possible protection of pension rights, and found reasons to include those rights in the bankruptcy estate (a creditor win and a catastrophic loss of retirement income for debtors). While Scalia may be considered a business or creditor-friendly justice, this is one of many instances in which he stepped forward to enforce the plain text. Unfortunately, many of the circuits had used other “toolbox” items to breeze past the text in order to achieve what they considered to be a desirable result. Metaphorically the circuit judges seemed to be ignoring the composer’s symphony score, to be played as written, and instead chose to treat it as a jazz score, inviting riffs and variations.
Another instance was argued before the U.S. Supreme Court in October and is now awaiting decision. R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., No. 18-107, considers whether the 1964 Civil Rights Act’s ban on sex discrimination also bans discrimination against transgender persons. While many of us would like to see Congress and state legislatures update the statutes to provide this protection, having the courts do so under the guise of “changed understandings” (Obergefell v. Hodges, 135 S. Ct. 2584, 2596, 192 L. Ed. 2d 609 (2015)) is damaging to our democracy and – as illustrated by the aftermath of Obergefell – invites the most atrocious forms of backlash. Just as Obergefell helped set the stage for the previously unthinkable, Trump’s presidency, the Harris Funeral decision may cement his re-election.
Perhaps judges should be required to write a NEPA-style “Democracy Impact Statement” when they depart from text in order to implement their policy preferences. There is a missing caveat in Judge Thissen’s article. Once we depart from the text, where is the fence line on the slippery slope? I would love to see a critique of plain-text analysis that can reliably specify that line. It also would be interesting to see Justice Thissen up on the debate podium with Justice Scalia’s co-author (and MSBA’s previous convention speaker), Brian Garner.
Kurt M. Anderson
Attorney at Law
kurt *at* kmalawmn.com