More from Justice Scalia on the Canon Against Superfluity

February 22nd, 2011

Some insight from Justice Scalia in Bruesewitz v. Wyeth LLC into statutory interpretation, with a little zing at the superfluous dissent.

But the rule against giving a portion of text aninterpretation which renders it superfluous does not pre-scribe that a passage which could have been more terse does not mean what it says. The rule applies only if ver-bosity and prolixity can be eliminated by giving the offend-ing passage, or the remainder of the text, a competinginterpretation. That is not the case here.48 [48 Because the dissent has a superfluity problem of its own, its reli-ance on Bates v. Dow Agrosciences LLC, 544 U. S. 431 (2005), is mis-placed.]

Here is Justice Sotomayor’s repy in dissent.

14In this manner, the “even though” clause functions in a “concessivesubordinat[ing]” fashion, ante, at 11, in accord with normal grammati-cal usage. According to the majority, however, the “even though” clause “clarifies the word that precedes it” by “delineat[ing]” the conditionsthat make a side effect “unavoidable” under the statute. Ante, at 7. The majority’s interpretation hardly treats the clause as “concessive,” and indeed strains the meaning of “even though.” In the majority’s view, proper manufacturing and labeling are the sole prerequisites that render a vaccine’s side effects unavoidable. Thus, an injurious side effect is unavoidable because the vaccine was properly prepared andlabeled, not “even though” it was. The two conjunctions are not equiva-lent: The sentence “I am happy even though it is raining” can hardly be read to mean that “I am happy because it is raining.” In any event, the more fundamental point is that petitioners’ interpretation actuallygives meaning to the words “even though,” whereas the majorityconcedes that its interpretation effectively reads those words entirely out of the statute.

Earlier this term Justic Scalia had this to say about the canon against superfluity in his dissent in Ransom v. FIA Card Services :

The Court believes, however, that unless the IRS’s Collection Financial Standards are imported into the Local Standards, the word “applicable” would do no work,violating the principle that “‘we must give effect to every word of a statute wherever possible.’” Ante, at 8 (quoting Leocal v. Ashcroft, 543 U. S. 1, 12 (2004)). I disagree. The canon against superfluity is not a canon against verbosity.When a thought could have been expressed more con-cisely, one does not always have to cast about for someadditional meaning to the word or phrase that could havebeen dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase “‘in addition to and not in derogation of’” the last part adds nothing but emphasis. Davies v. Powell Duffryn Associated Collieries, Ltd., [1942] A. C. 601, 607.