Dorf on “Conservative” Purposivism in AT&T v. Concepion

April 29th, 2011

Michael Dorf writes about AT&T v. Concepion (which I blogged about here and here) and notes that the “Court’s ruling runs away from principles that conservatives purport to value in other contexts” to issue a “pro-business” ruling. In short, Justice Scalia tries to discern the purpose of the Federal Arbitration Act where the text is silent. This, Dorf says, is contrary to conservative dogma, and belies their aim to issue a pro-business ruling.

In other contexts, the conservatives, led by Justice Scalia, have been very hostile to the notion that a statute should be interpreted according to its purpose, where that purpose is not clearly expressed in the text.  As Justice Scalia, Judge Easterbrook, and other textualists in the sway of public choice theory like to say, statutes are compromises among legislators serving multiple purposes, and part of the legislative deal is a decision not to pursue all purposes at all costs.  Thus, they say, courts should stick to the text. . .  . Conservatives espouse formalism even after they have been confirmed, and also claim that their methodological druthers, unlike the liberals’ methodological druthers, don’t leave substantial room for the imposition of their values.  That claim is not worth very much when the people making it abandon their preferred methodology to reach results that match their normative commitments.

I’m not too persuaded by this argument. Nino’s beef is not with intent, generally, but with discerning intent through legislative history, which he scorns. The line between the meaning of a statute, and its purpose, is very fine. Scalia wanted to see what is in the mind of the enactors. Justice Breyer, in contrast, relied on statements made by Secretary of Commerce Herbert Hoover and random witnesses. Dorf notes that this OK for Progressives, as they “generally acknowledge the fact that a judge’s values influence how she decides a case, except during their confirmation hearings, when they become formalists.”

I’m not willing to say Nino looked to purpose here solely to issue a ruling that “matches [his] normative commitments.” In a number of cases this term, the so-called pro-business Roberts Court issued rulings that were not really pro-business. (see herehere, and here).

In my instant analysis of the AT&T case, I wrote:

The pro-business Roberts Court is no doubt back, I predict detractors will broadly proclaim, ignoring all those other cases this term where it was on vacation. (see herehere, and here).

Dorf does mention FCC v. AT&T.

In FCC v. AT&T Inc. Chief Justice Roberts, the great illusionist, wrote for a unanimous Court that corporations do not possess personal privacy rights under FOIA.

In Henderson v. Shinseki, Justice Alito writing for a unanimous Court found that a statute of limitations applied to veterans filing appeals is not jurisdictional, thus leaving open such options as “equitable tolling.”

In Staub v. Proctor Hospital, Justice Scalia writing for 6 members expanded the ability of employees to sue their employers under USERRA under the “cat’s paw” theory. Justice Alito, joined by Justice Thomas, concurred in judgment, and would have reached the same result through reference to the statutory text, rather than to principles of agency law.

Last week in Williamson v. Mazda Motor of America, Inc., the Court unanimously found that a California car-safety law was not pre-empted.

In January in Thompson v. North American Stainless, LP, Justice Scalia wrote for a unanimous Court, and found that Title VII’s ban on workplace retaliation against an employee who challenges discrimination also protects a co-worker who is a relative or close associate of the targeted employee.

I would have to read closely, but I’m fairly certain a number of these cases, which Justice Scalia joined, relied on some purposivist inquiry. Rather, Dorf argues “The basically legal realist claim I am making here is more subtle: That the conservatives frequently (not always) abandon the jurisprudential principles they otherwise espouse because of their ideological commitments.”

I’m not quite sure how to quantify that. I could also argue, on the flip side, that liberals tend not to have jurisrpudential principles, or they are much less rigid, so liberal abandonment is quite rare (and thus, in comparison to conservatives, less). I’m not sure where that gets us.

Dorf raises another point, beyond purposivism that is more interesting.

In the AT&T case, moreover, the majority opinion exhibits tension with another jurisprudential principle favored by Justice Scalia and other conservatives.  In cases under the Equal Protection Clause and the Free Exercise Clause, Justice Scalia and his fellow travelers have repeatedly argued against disparate impact tests.  To discriminate, they say, is to use a criterion that on its face draws an impermissible distinction or, in rare circumstances, to use a formally neutral criterion that was adopted for the purpose of discriminating and has a disparate impact.

Yet in the AT&T case, the majority is willing to find that California’s no-class-waiver rule does not apply to “any contract” because, even though it does apply to any contract, it impedes what Justice Scalia deems to be the purpose of the FAA.  It is possible to make this argument for the hypothetical no-jury-waiver and no-discovery-waiver rules, because then the state rule, while formally applying to any contract, would really apply only to arbitration contracts.  But the existence of arbitration class actions means that it’s very hard to say that the California law’s (supposed) disparate effect on arbitration must be evidence that the California no-class-waiver rule was adopted for the purpose of singling out arbitration.  Consequently, it appears that the Court’s conservatives are betraying their general hostility to disparate impact for its own sake.

I’ll admit, I don’t quite follow (except for the last sentence, that is quite clear). I think comparing “disparate impact” in the employment labor context seems different from “disparate impact” in this context. Further, there is also the equal protection element of “disparate impact,” as discussed in Scalia’s concurrence in Ricci v. DeStefano.