Justice Antonin Scalia was missing from the bench Tuesday morning when the U.S. Supreme Court handed down two statutory interpretation cases — apparently he was stuck in traffic. But even in his physical absence, Scalia’s presence was looming. It’s not only that he wrote both of the opinions, each decided by a unanimous court. It’s that both opinions reflect his approach of “textualism” — a form of literal legal interpretation that has become his most distinctive contribution to U.S. law. And that in turn provides a strong indication that the Supreme Court will use the same technique later this year to reach a ruling that effectively puts an end to the Affordable Care Act.
One case decided Tuesday was criminal, the other civil, and on the surface you might think the first decision was conservative and the other liberal. But you’d be wrong on both counts. The criminal case, Whitfield v. U.S., which I wrote about when it was argued, asked about the meaning of a law that says a bank robber can’t force someone “to accompany him” during the commission of a bank robbery. The defendant in question had entered a woman’s home while fleeing police after an unsuccessful robbery attempt. At some point before the woman died of a heart attack, the robber, who was armed, asked her to go into the next room with him.
The defendant’s lawyers argued that the separate crime of forcing someone to accompany the robbery or getaway was aimed at a bank robbery combined with kidnapping. They pointed out that almost every bank robber surely asks someone to go somewhere inside the bank with him. The statute would therefore have the effect of multiplying the punishment of ordinary bank robbers, which the lawyers maintained plausibly enough could not be its purpose.
Scalia — and all his colleagues, including the liberals — disagreed. Scalia loves to cite dictionaries, which he treats as a kind of magical touchstone for his textualism. “Accompany,” he said, means “to go with.” It “does not, as Whitfield contends, connote movement over a substantial distance.” Scalia gave two examples from English literature — one from “David Copperfield, “ one from “Pride and Prejudice” — that use the word accompany to describe movement from one room to another.
The use of Charles Dickens and Jane Austen to interpret criminal law isn’t just pseudo-erudition that turns Google Books into a judicial tool. It’s bad statutory interpretation. Statutory interpretation must take account of context and legislative purpose, both enemies of Scalia’s textualism.
Tuesday’s other opinion had to do with when borrowers have to tell lenders that they are planning to rescind a loan agreement for failure to make certain required disclosures under the Truth in Lending Act. In Jesinoski v. Countrywide Home Loans, the borrowers sent a notice of rescission to the lender within three years of the date of the loan, but they didn’t file suit until a year after that.
Both courts below held against the borrowers. Pragmatically, they reasoned, a letter asserting the intention to rescind was just a piece of paper. A lawsuit would convey the intention to invoke the law properly and prove legally that the required disclosures had not been made. It would also make little sense for the law to require notice within three years but then provide no statute of limitations for a subsequent lawsuit. For its part, the bank maintained that a letter would be fine if all parties agreed that there had been a failure to disclose. If it was disputed, however, the bank argued that a lawsuit must be filed within three years.
Scalia opted for a literal reading of the statute — and all his colleagues joined him, including the conservative ones, who might otherwise not have been sympathetic to borrowers trying to wriggle out of contractual agreements. The law says literally that the borrower may rescind “by notifying the creditor, in accordance with regulations of the Board, of his intention to do so.” Notification does not mean suit, Scalia said.
Legal context would have cut the other way. Traditionally, under common law, rescission of a contract takes place either on return of the benefit received in the contract or else when the courts so decrees. But Scalia wrote that “nothing in our jurisprudence, and no tool of statutory interpretation, requires that a congressional Act must be construed as implementing its closest common-law analogue.” Nothing, that is, except the background assumption that the law is a continuous logical whole, not a series of isolated utterances that must be interpreted literally.
Fascinating questions of statutory interpretation aside, why should you care? The answer is that unanimity in both of these cases signals the gradual ascendance of Scalia’s literalism. Justice Stephen Breyer, the court’s most articulate advocate of purpose-oriented statutory interpretation, spilled a lot of ink last year disputing Scalia’s approach. It would’ve been nice to see him take the bit between his teeth again.
The biggest case Supreme Court will hear this term, King v. Burwell, involves a new challenge to the Affordable Care Act. In the 2012 Obamacare decision, Chief Justice John Roberts balked at invoking the Constitution to strike down the mandatory coverage provision of the law. This time the argument turns on — you guessed it — a literal reading of one provision of the health-care law. Liberals will have to argue for purpose. Scalia is waiting for them.
Bloomberg View columnist Noah Feldman is a professor of constitutional and international law at Harvard University.
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