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Justice Scalia and Bryan Garner’s magisterial “Reading Law” has been cited by the Supreme Court eight times since its publication in 2012: three times with Justice Scalia joining the opinion, and six times where Justice Scalia was not in the opinion. Justice Sotomayor has three citations, Justice Kennedy has two, and one each for the Chief, and Justices Alito and Kagan. None by Justices Scalia, Thomas, Ginsburg, or Breyer.

Opinions joined by Justice Scalia

Yates v. U.S. (2015) (Kagan, J., dissenting).

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 252 (2012). Context thus again confirms what text indicates.

T-Mobile South v. City of Roswell (2015) (Sotomayor, J.).

By relying on other parts of Title 47 of the U.S. Code—some enacted in the Communications Act of 1934 decades before the enactment of the Telecommunications Act of 1996 at issue here—the Chamber stretches to invoke this canon of construction beyond its most forceful application. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 172–173 (2012).

Heien v. North Carolina (2014) (Roberts, J.).

A law prohibiting “vehicles” in the park either covers Segways or not, see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36–38 (2012), but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by.

Opinions not joined by Justice Scalia

Texas Dept. of Housing (2015) (Kennedy, J.)

“If a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012).

Johnson v. U.S. (2015) (Alito, J., dissenting)

As one treatise puts it, “[a] statute should be interpreted in a way that avoids placing its constitutionality in doubt.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts § 38, p. 247 (2012). This canon applies fully when considering vagueness challenges.

(Here, Scalia wrote the majority opinion, so Alito is jabbing Nino).

Department of Homeland Security v. MacLean (2015) (Sotomayor, J., dissenting).

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 114 (2012) (“[W]hen the word shall can reasonably read as mandatory, it ought to be so read”).

Scialabba v. Cuella de Osorio (2014) (Sotomayor, J., dissenting).

In rushing to find a conflict within the statute, the plurality neglects a fundamental tenet of statutory interpretation: We do not lightly presume that Congress has legislated in self-contradicting terms. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory…. [T]here can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously”). That is especially true where, as here, the conflict that Congress supposedly created is not between two different statutes or even two separate provisions within a single statute, but between two clauses in the same sentence. See ibid. (“[I]t is invariably true that intelligent drafters do not contradict themselves”).

Maracich v. Spears (2013) (Kennedy, J.).

That inconsistency and the concomitant undermining of the statutory design are avoided by interpreting (b)(4) so it does not authorize the use of personal information for the purpose of soliciting clients. See A. Scalia & B.Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory…. [T]here can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously”).

At one point during oral argument in King v. Burwell, Solicitor General Donald Verrilli referred to a “learned treatise.”

Your Honor raised this point about the need for clarity in ­­ in a tax deduction and IRS in the  statutory reading of tax deductions, there is a learned treatise that describes that as a false notion.

It was Scalia and Garner’s Reading Law.

I was struck by this sentence in the Texas Fair Housing case (which I am only now getting a chance to read, thank you very much King v. Burwell):

De jure residential segregation by race was declared unconstitutional almost a century ago, Buchanan v. Warley, 245 U. S. 60 (1917), but its vestiges remain today, intertwined with the country’s economic and social life.

That is an important odd way of characterizing the holding in Buchanan v. Warley. Recall that this case was decided while Plessy v. Fergusson was still good law. It was most certainly not an equal protection decision. Rather it was a (gasp) economic liberty decision, based on similar doctrine applied in (gasp) Lochner. Consider the penultimate paragraph which discusses the holding:

We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law.

In class, echoing David Bernstein, I often explain that liberty of contract in Buchanan v. Warley was used as a method of fighting segregation. And now, the Supreme Court has endorsed that reading of this (gasp) Lochner-era case.

I did a (brief) search through the Supreme Court database to see how Buchanan has been cited in the past (43 times), but there was nothing nearly this sweeping.

The closest I found was CJ Burger in Palmore v. Sidoti:

This is by no means the first time that acknowledged racial prejudice has been invoked to justify racial classifications. In Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917), for example, *434 this Court invalidated a Kentucky law forbidding Negroes to buy homes in white neighborhoods.

Justice Douglas also limited the scope of the decision in Village of Belle Terre v. Boraas:

If the ordinance segregated one area only for one race, it would immediately be suspect under the reasoning of Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 where the Court invalidated a city ordinance barring a black from acquiring real property in a white residential area by reason of an 1866 Act of Congress, 14 Stat. 27, now 42 U.S.C. s 1982, and an 1870 Act, s 17, 16 Stat. 144, now 42 U.S.C. s 1981, both enforcing the Fourteenth Amendment. 245 U.S., at 78—82, 38 S.Ct. at 19—21. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189.

 

The government’s strategy since Texas v. United States was filed back in January has befuddled me. After Judge Hanen ruled against them (as expected), they dithered over seeking a stay, and ultimately did several weeks later. By seeking a stay, rather than just seeking an expedited appeal, the process was drawn out several months. After the 5th Circuit denied a stay, they again dithered over whether to seek a stay from the Supreme Court, and ultimately decided not to. Based on my calculations, this delay means that the issue will almost certainly not be decided by the Court until June of 2016 at the earliest (assuming the government can get a cert petition in by October, and it is argued around March). I couldn’t quite figure out why the White House was content to let this issue sit for another year before being resolved, effectively running the clock out on the Obama Presidency. The White House Domestic Policy Advisor explained the administration did not want to seek a stay, as that would only be a temporary remedy, and aliens would be afraid to sign up if the Court may ultimately find on the merits that the policy is unlawful. That answer made some sense, but I think there may be an another, far more cynical rationale.

Politico reports:

David Leopold, a veteran immigration attorney and former president of the American Immigration Lawyers Association, said the presence of both Elrod and Smith on the appeals panel indicates that the Fifth Circuit is likely to rule against the administration again — raising the chances that this case would get pushed to the Supreme Court, perhaps during the heat of the 2016 presidential race.

“The merits are broader, but we know exactly where this court is going. Smith’s and Elrod’s opinion pretty much mirrors what Judge Andrew Hanen did, absent the political diatribes,” Leopold said Monday. “Unfortunately for the GOP, if this case goes to the Supreme Court, the Court will have to fix it and the GOP will be facing yet another national loss which will be bad for them politically and further tarnish their brand with Latinos.”

A few months ago, a lawyer friend suggested that the Administration was content to drag this process out because it gives the Democrats political gain, and forces the Republicans to take tough positions on immigration. Think of how King v. Burwell put many Republicans under pressure concerning Obamacare. The immigration case doesn’t quite fit that bill, but it’s close. If this case does indeed stretch to June 2016 term, it becomes an important political issue for the 2016 Presidential election. If the Court rules for the President, the democrat President can assure immigrants that she will continue the policy, but the Republican President could lose those voters by pledging to halt it. If the Court rules against the President, the Democrat nominee will insist on an immigration bill that accomplishes what DAPA would have. Either way, the Democrats can gain–as Leopold explained, this case will be another “national loss.” for the GOP. I haven’t seen anyone make the election argument as clear as Leopold did, so I think this may be a new talking point to assuage those angry that the government did not seek a stay–especially after learning about the merits panel.

I don’t pretend to understand the political machinations of the Justice Department, but when the decisions had so much public infighting, I have to imagine this political calculus weighed in, somehow.

 

A little King v. Burwell fun with Chief Justice Roberts’s dissent in Arizona State Legislature:

Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment re- sulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner ap- proval from Congress and three-quarters of the States.

What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”

Rick Hasen adds at Slate:

Monday’s 5–4 decision has much in common with last week’s blockbuster Obamacare ruling. In a 6–3 decision in King v. Burwell, the Supreme Court upheld the availability of federal subsidies for those signed up for Obamacare despite language in the health care law that could have been interpreted to give those subsidies only to those on state exchanges. The court rejected a narrow reading of the term “such exchanges” in the health care case because it saw its job not to read the text out of context but to follow broad congressional purpose. As Chief Justice John Roberts wrote for the King majority: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”
But while Roberts was willing to be less than literal in the Obamacare case in order to further the obvious purposes of the statute, he was not so flexible in the Arizona case. At issue in Arizona was whether Arizona voters could take away the power to draw congressional districts from the self-interested and partisan Arizona Legislature and put it in the hands of an independent redistricting commission. The Constitution’s Elections Clause vests in each state’s “Legislature” the power to set the rules for congressional elections, subject to congressional override. In some earlier cases, the Supreme Court had rejected narrow readings of the word legislature, for example by letting the people use a referendum to review congressional redistricting plans from a legislature. Roberts said today that cutting the legislature out entirely violated the Constitution. “What chumps!” he declared sarcastically of those who believed the word legislature should be interpreted literally.

I have not followed the merits of Arizona State Legislature v. Arizona Independent Redistricting Comm’n closely enough to weigh in on the opinion. But relevant to my research is the discussion of standing, where the state Legislature sued in federal court over the redistrict commission’s authority to make binding determinations.  Specifically, how does this impact currently pending cases concerning suits by Texas against

RBG’s opinion offers a short summary of the standing requirements:

Trained on “whether the plaintiff is [a] proper party to bring [a particular lawsuit,]” standing is “[o]ne element” of the Constitution’s case-or-controversy limitation on federal judicial authority, expressed in Article III of the Constitu­ tion. Raines v. Byrd, 521 U. S. 811, 818 (1997). “To qual­ ify as a party with standing to litigate,” the Arizona Legis­ lature “must show, first and foremost,” injury in the form of “‘invasion of a legally protected interest’ that is ‘con­ crete and particularized’ and ‘actual or imminent.’” Ari- zonans for Official English v. Arizona, 520 U. S. 43, 64 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992)). The Legislature’s injury also must be “fairly traceable to the challenged action” and “redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U. S. ___, ___ (2013) (slip op., at 10) (internal quotation marks omitted).

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