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.