Wednesday, March 06, 2019

Did Jam v. IFC Kill Purposivism?

By Michael C. Dorf

My latest Verdict column discusses a recent federal district court ruling that draft registration is unconstitutional on the ground that, by applying to men but not women, it denies equal protection. I don't engage the merits. Rather I ask whether the court erred by anticipatorily overruling a SCOTUS precedent--Rostker v. Goldberg--in violation of an admonition from the justices to leave them the prerogative of overruling their own cases. I conclude that the district judge did violate the admonition but that he might get away with it, because an anticipatory overruling will tend to tee up the merits. Here I want to discuss another recent case. In this one, a lower court judge also thought that a binding precedent was wrong, but rather than take it upon herself to declare it inoperative, she followed it and flagged the issue for further review.

Jam v. Int'l Finance Corp is a lawsuit by Indian citizens against an international organization alleging that the latter's lax supervision of its loan led to catastrophic environmental harm. IFC invoked the International Organizations Immunities Act, (IOIA) which grants international organizations the “same immunity from suit . . . as is enjoyed by foreign governments.” When the IOIA was enacted in 1945, foreign governments enjoyed essentially absolute immunity, but today they do not. The question posed by Jam was whether the IOIA should be interpreted statically--so that IFC would have the same immunity that foreign governments enjoyed in 1945--or dynamically--so that IFC would have the same immunity that foreign governments enjoy now.

The DC Circuit, relying on its own circuit precedent, ruled in favor of static interpretation. Judge Pillard concurred in that result, because a panel precedent can only be overruled by an en banc or Supreme Court decision, but she wrote separately to say that she thought the controlling circuit precedent was wrong. That concurrence may have played a role in alerting the Supreme Court to the need for a correction. The correction came last week, when the Court ruled 7-1 for dynamic rather than static interpretation of "same immunity."

That bottom line strikes me as sensible if not inarguable. But the route the Court took to get there and its rejection of arguments made by Justice Breyer in dissent raise some potentially profound questions about the long-running debate about statutory interpretation.

The majority opinion of Chief Justice Roberts in Jam sounds in textualism. Here is the key analytical move:
The language of the IOIA more naturally lends itself to [a dynamic] reading. In granting international organizations the “same immunity” from suit “as is enjoyed by foreign governments,” the Act seems to continuously link the immunity of international organizations to that of foreign governments, so as to ensure ongoing parity between the two. The statute could otherwise have simply stated that international organizations “shall enjoy absolute immunity from suit,” or specified some other fixed level of immunity. Other provisions of the IOIA, such as the one making the property and assets of international organizations “immune from search,” use such noncomparative language to define immunities in a static way. 22 U. S. C. §288a(c). Or the statute could have specified that it was incorporating the law of foreign sovereign immunity as it existed on a particular date.
The opinion goes on to cite a fair number of other examples of other statutes and cases to establish something like a working presumption that "same" language implies dynamic rather than static reference.

In his dissent, Justice Breyer points to counterexamples. The text is not as clear as the majority suggests, he says, and so the court must resort to additional interpretive tools. Doing so, he says, leads to the conclusion that the immunity the IOIA confers is best understood as static.

I am not now interested in who has the better of this argument. In a 2008 article in the University of Pennsylvania Law Review, I evaluated the costs, benefits, and constitutionality of one polity dynamically incorporating the law of another (as when provisions of a state tax code automatically adjust to changes in the dynamically incorporated provisions of the federal Internal Revenue Code). Some of what I wrote there is relevant to both the policy decision whether to dynamically incorporate within a single polity and the judicial decision whether a particular statutory provision incorporates some other legal provision within that same polity dynamically or statically (the question in Jam). But the inter-polity case raises enough distinct (and frankly harder) questions than the intra-polity case to lead me to conclude that I haven't yet thought enough about the latter to have worked out a full view.

Accordingly, I want to focus on the broader jurisprudential implications of Jam. Justice Breyer's dissent contains several expressions of both a critique of textualism and a brief for purposivim. He says: "It is purpose, not linguistics, that can help us here." Then later, he decries what he regards as the majority's single-minded focus on text and narrow conception of relevant context: "all interpretive roads here lead us to the same place, namely, to context, to history, to purpose, and to consequences. Language alone cannot resolve the statute’s linguistic ambiguity." Justice Breyer concludes with a paean to purposivism that, given the solo nature of his dissent, has an elegiac quality. He writes:
Purposes, derived from context, informed by history, and tested by recognition of related consequences, will more often lead us to legally sound, workable interpretations—as they have consistently done in the past. These methods of interpretation can help voters hold officials accountable for their decisions and permit citizens of our diverse democracy to live together productively and in peace—basic objectives in America of the rule of law itself.
For the record, if there must be a choice between textualism and purposivism, I'm with Justice Breyer and purposivism. But I also think the stakes are now quite low.

Textualism arose chiefly as an attack on promiscuous and undisciplined resort to legislative history, that is, as an attack on intentionalism rather than purposivism. It's true that some purposivists (including Justice Breyer) think that legislative history still has a role to play in statutory interpretation, but these days they rarely cite the sort of material to which early textualism so vociferously objected--floor statements and committee reports.

To be sure, Justice Breyer is an exception. He cites legislative history frequently. But as his dissent in Jam illustrates, he does so as a purposivist--a judge interested in giving practical effect to a statute's purposes--rather than as an intentionalist--a judge seeking to uncover what the legislature thought or would have thought about the precise facts before the court. Thus, he relies on Senate and House reports on the IOIA for such anodyne propositions as the claim that the statute aimed to “satisfy in full the requirements of . . . international organizations conducting activities in the United States.” One could just as well infer that purpose from the text of the IOIA.

Even if one reads the majority opinion in Jam as categorically and forever ruling out the use of legislative history, it is hard to imagine that reading having practical consequences in many cases. One can be a purposivist pretty effectively just by inferring purposes from a statute's text and context.

And here's the kicker: These days one can also be a purposivist by being a textualist. Justice Kagan declared in her 2015 Scalia Lecture at Harvard that "we're all textualists now," but however she intended it, that statementt was as much a commentary on how liberals and moderates had softened textualism as it was about how any sort of conversion to Scalia's views. With specific reference to what happened to textualism when it went mainstream, Professors Kessler and Pozen observe: "Any theory that successfully attracts a large number of adherents is liable to undergo a process of refinement and revision, if not outright appropriation, that will come over time to undermine its formative goals."

If Breyer is right to see the majority opinion in Jam as formally rejecting purposivism, he can take comfort from the fact that he has allies--including Justices Ginsburg, Sotomayor, and Kagan, who all joined the Chief Justice's opinion in Jam--working on the inside to make textualism more or less indistinguishable from purposivism.

I want to conclude with a thought about the related phenomenon of liberals--most notably Professor Balkin--who have become originalists, only to then argue that originalism and living constitutionalism are "two sides of the same coin." Although in principle that move should render originalism safe for nonoriginalists in much the same way that the mainstreaming of textualism renders it safe for purposivists, I worry that jurists like Justice Thomas continue to utilize the older, more dangerous version of originalism, while using the theoretically mainstream version as a kind of cover. (I explored this problem in depth here and recently on the blog here.)

There is some risk of roughly the same thing happening in statutory interpretation. Justices who subscribe to a stricter form of textualism could use the mainstreaming of textualism as cover to revert to a more wooden form of textualism. For that reason, Justice Breyer is not wrong to favor express purposivism over even a domesticated version of textualism. But it is not clear to me that writing a dissent that describes textualism as rejecting consideration of purposes--when the majority opinion in Jam did not obviously do that--advances the goal of keeping legislative purposes relevant to statutory interpretation.


Joe said...

I appreciate Breyer's dissent (though perhaps not his result) and appreciate this discussion. Justice Breyer at times is criticized (maybe not even being a "judge"*) for his approach at judging, but I think he is being honest and upfront.

Judging involves making certain choices, including interpretative methods. Majority opinions at times hide the complexities there for the sake of unanimity or larger majorities as some suggest RBG did regarding a recent case where she did not reference the controversial Chevron case. This is the way of the world, but it's helpful to be clear what is being done here.

Breyer flags that "just follow the text" (like some stereotypical Rumpole of the Bailey judge's stale nostrums) can be b.s. I saw this in a recent article that Prof. Segall flagged on Twitter defending originalism, allegedly merely following the "text" of the Constitution. Oh please. Someone else also called into question an example used in a textualism opinion recently handed down by Kavanaugh.


* Book reference; inside joke.

Joe said...

Note: I am told that Prof. Dorf will no longer tape readings of his columns given lack of demand. He was a hold-over from when many more columnists provided audio at Justia/Verdict. See, e.g.,:

Thanks for doing it so long.

Michael C. Dorf said...

Thanks for listening (and sorry again).

Asher said...

I think this is probably largely wrong, as follows (and I'll post this in a couple parts because I may or may not be running up against your character limit):

I can't cite examples off the top of my head, but Breyer definitely does, at times, use legislative history in an intentionalist way, i.e., say that the history says x was intended, so therefore an ambiguous statute means x. (This isn't a criticism of Breyer; in fact, I struggle a little to understand how one could think legislative history is a reliable source of information on legislative purpose, yet not rely on it to resolve the intended meaning of particular provisions, when it's sufficiently precise.)

Kessler and Pozen have an interesting thesis, but I think the title of Jonathan Siegel's "The Inexorable Radicalization of Textualism" much more accurately describes textualism's recent evolution. This is a blog, so arguments naturally do get a bit compressed, but really the only reason you give to think otherwise is that Kagan describes herself as a textualist and Ginsburg and Sotomayor join textualist opinions. (So does Breyer at times; most unanimous opinions the Court issues these days are textualist statutory opinions.) But, aside from the obvious irrelevancy of who joins textualist opinions -- all sorts of people join all sorts of opinions they don't write and wouldn't necessarily write in the way that they're written, and their merely doing so doesn't qualify as "working on the inside" to moderate the ideas those opinions contain unless they actually extract moderating concessions -- whatever makes you think that Kagan herself isn't a pretty staunch textualist? As between Roberts and her, I would say she's the stauncher textualist. Take a case like Yates, or consider that Roberts seems to author most of the Court's stunningly non-textualist opinions, like Bond or Burwell (examples that Kessler and Pozen cite to show textualism is moderating, an argument that entirely turns on the question-begging assumption that Roberts in fact is a textualist).

Asher said...

Continuing along, the textualism-purposivism distinction matters because textualism, far from becoming more or less indistinguishable from purposivism, is becoming fairly radical. This case is a great example; the majority finds more or less clear meaning in a statute that in fact, as Breyer shows, is irresolubly semantically ambiguous, by, by turns, making confused arguments from ordinary meaning, relying on an obscure canon that probably makes no sense (and happens to be infamously unadministrable because of the hopelessly vague distinction it draws between specific and general references, though admittedly there are some clear applications, as in this case), and rejecting arguments from purpose out of hand. Generally, what we see in textualist opinions is an ever-increasing tendency to find determinacy in deeply ambiguous statutes by relying on pseudo-rules of grammar, incredibly aggressive applications of anti-surplusage, and the like, leaving very little room for considerations of purpose to play any role. Many textualists believe, for example, that even if Chevron isn't overruled, if you're doing textualism right you should hardly ever get to the point of giving the government deference because you'll hardly ever find a statute ambiguous. The epitome of these radicalizing trends, perhaps, is then-Judge Kavanaugh's review of Judge Katzmann's book, where he proposes jettisoning *all* ambiguity-triggered/resolving doctrines and canons in favor of just giving ambiguous statutes their "best reading" (a textualist reading, of course) independent of ambiguity-resolving rules, which he claims is much easier for judges to do, and to agree on, than merely figuring out whether a statute is ambiguous or not. Now, purposivists historically, and such purposivists as are still around today, often find ambiguity and move to purpose much sooner than I am comfortable with (though I don't think Breyer moves to it a moment too soon here). But whether they're right or wrong about that, there remains, for that reason and for the reason of how textualists deal with ambiguity, which increasingly is generally denying that it exists at all, a large gulf between how textualists and purposivists interpret statutes in practice, even though textualists grant that purpose matters and purposivists grant that clear text must almost always be followed.

Finally, on your interesting suggestion that writings like Breyer's set back, rather than advance, the goal of keeping purpose relevant, I don't think that's right either. Rather, I think that failing to make full-throated arguments for thoroughgoing purposivism -- and even with this dissent, arguments of that kind, coming from judges on any level of the judiciary, much less Supreme Court Justices, are quite rare -- tends to further the belief that purpose, these days, is just something you look to after you've exhausted grammar, "grammar" (the last antecedent rule, for example, is a rule of "grammar" that disambiguates between multiple perfectly grammatical possibilities), poorly constructed analogies to hypothetical sentences about entirely different topics from the statute at hand that share the same ambiguous word or phrase or grammatical construction you're trying to interpret, canons, including obscure ones or ones recently rediscovered or invented in Scalia and Garner's book, and all the rest, and only after piously reminding oneself of the textualist maxim that no statute pursues its purpose at all costs and that if a purpose-defeating interpretation reads a smidgen better than the purpose-advancing interpretation, you should go with the former, and pat yourself on the back for doing so, in print. While there are lots of professors who still publicly espouse Breyer's views, in articles that few practitioners or judges read, a Justice expressing them helps keep them on the wall, off of which I at least think they're coming perilously close to falling, and in the legal consciousness.

Joe said...

"You don't want the truth because deep down in places you don't talk about at parties, you want me on that wall -- you need me on that wall."

Shag from Brookline said...

Over at the Originalism Blog there is an interesting post on a recent article on Textualism"


Mark Seidenfeld: The Theoretical Bankruptcy of Textualism
Michael Ramsey
"Mark Seidenfeld (Florida State University College of Law) has posted The Theoretical Bankruptcy of Textualism (13 pages) on SSRN. Here is the abstract:

This Essay contends that textualist interpretation – by which it means the search for the most likely public meaning of the words of a statute – in inconsistent with Congress’s responsibility for the substance of the law that it enacts. The textualist assertion to the contrary, that it is the text of the statute that is voted into law, fails to comprehend that the language of the statute is merely a means by which the legislature communicates what it intends the law to be. Therefore, this Essay responds to the textualist belief that the text of the statute is the reification of the law by arguing that the law should be what the legislators who voted for it understood the words of the statute to mean. This Essay further explains why it is not reasonable, or even possible, to expect legislators to determine the meaning of the words they enact using the tools of textualist judges. Hence, it argues that textualists cannot rely on the fact that words have an objective best meaning of which the legislature should be aware to support their contention that the law should be the most likely public meaning of the statutory text. The Essay then concludes by considering some implications that the theoretical bankruptcy of textualism should have for judicial statutory interpretation."

Ramsey makes this editorial comment:

"If you accept this argument, would that not also apply to the Constitution?"

The draft article is a relative short but dense draft (13 pages( on textualism. Perhaps there are many variations of textualism as there is of originalism. I'm not taking sides regarding the post or the comments so far. Rather , is there agreement on what constitutes textualism and whether textualism is the proper form for the interpretations os statutes.