A fair amount of attention has focused on the first opinion — in the case of Henson v. Santander Consumer USA — authored by newly-minted Supreme Court Justice Neil Gorsuch.
But the Court’s opinion in another case decided in June — Advocate Health Care Network v. Stapleton, an opinion arising under the federal Employee Retirement Income Security Act (“ERISA”) statute — is also worthy of some attention.
As in Henson, the opinion in Advocate Health Care Network was for a unanimous Court (although Justice Gorsuch did not participate in the latter case). Like Justice Neil Gorsuch’s opinion in Henson, the opinion in Advocate Health Care Network was heavily textualist, emphasizing the importance of following the words Congress used in drafting a statute rather than speculating what Congress might have wanted to do if confronted with the facts now before the Court.
{mosads}What is surprising is that the Advocate Health Care Network opinion was authored by Justice Elena Kagan, an appointee of President Barack Obama. While Kagan has exhibited a penchant for textualism over the years, this opinion is a tour de force in textualist interpretive technique.
At times, it seems that Kagan might have been channeling the ultimate espouser of textualist interpretation of statutes, Justice Antonin Scalia.
The Advocate Health Care Network opinion raised the question of whether an ERISA exemption for retirement plans established and maintained by churches extends to plans established and maintained by church-affiliated nonprofits.
An ERISA statutory provision provides that a retirement plans “established and maintained” by a church “includes” a plan “maintained by” a church-affiliated nonprofit.
The question in the case was whether, in order to qualify for the “church plan” ERISA exemption, a plan “maintained by” a church-affiliated nonprofit must be established by a church, or whether a plan established and maintained by a nonprofit can qualify for the exemption.
Kagan begins her analysis where all good textualists do: with the language of the governing statute. The opinion carefully parses the statutory language.
For example, it highlights the distinction between the use of a word literally or for definitional purposes: It notes that the “use of the word ‘include’ is not literal—any more than when Congress says something like ‘a State “includes” Puerto Rico and the District of Columbia.’ Rather it tells readers that a different type of plan should receive the same treatment (i.e., an exemption) as the type described in the old definition.”
The opinion then presents the reasoning underlying the Court’s holding “in the form of a simple logic problem” based upon the plain language of the statute.
If “Premise 1” is that “A plan established and maintained by a church is an exempt church plan” and “Premise 2” is that “A plan established and maintained by a church includes a plan maintained” by a church-affiliated nonprofit, then the logical “Deduction” is that “A plan maintained by [a church-affiliated nonprofit] is an exempt church plan.”
Kagan bolsters this syllogism by reference to two common textualist tools: (i) the notion that Congress should be held to its drafting decisions, and (ii) reference to canons of interpretation.
Textualist analysis often points out that, had Congress wanted a different conclusion, other wording was readily available for it to reach that conclusion.
Here, Kagan emphasizes that Congress could have drafted the statutory provision at issue to define not a “[a] plan established and maintained by a church”, but rather simply “[a] plan maintained by a church”, to include a plan maintained by a church-affiliated nonprofit.
Then the requirement that an exempt plan be created by a church would remain and apply equally to plans maintained by church-affiliated nonprofits. But Congress did not do this. That being the case, Congress should be held to the wording it did use.
Textualist analysis often also turns for support to semantic canons of interpretation—that is, general rules (often said to be based upon how ordinary people understand ordinary speech) for interpreting communicative speech.
Here, Kagan relies upon—with a citation to book on textualist statutory interpretation co-authored by Justice Scalia—the “surplusage canon,” the “presumption that each word Congress uses is there for a reason.”
The opinion explains that, to reach the conclusion that plans established by churches but maintained by nonprofits not exempt from ERISA, one confronts the problem that the words “established and” in the statutory phrase “[a] plan established and maintained by a church includes” are rendered nugatory.
The Supreme Court declined “to treat those words as stray marks on a page—notations that Congress regrettably made, but did not really intend.”
The plaintiffs had attempted to counter the invocation of the surplusage canon with a “supposed interpretive principle” of their own. In the context of an example, the plaintiffs argued that, if “a statute provides free insurance to a ‘person who is disabled and a veteran,’ and an amendment then states that ‘a person who is disabled and a veteran includes a person who served in the National Guard,” then “a non-disabled member of the National Guard” would “surely not” be entitled to the insurance benefit.
Applying this logic to the ERISA provision, the plaintiffs argued that a plan that is not created by a church is “surely not” entitled to the ERISA exemption.
Kagan’s opinion takes on this argument first by distinguishing the plaintiff’s “supposed interpretive principle” from an accepted canon, observing that the plaintiffs “cite no precedent or other authority to back up their proposed rule of construction.”
Kagan then relied upon another canon — the canon against absurd results — to set aside the plaintiffs’ proposed canon as not generally applicable.
The Supreme Court explained that the application of the plaintiffs’ proposed interpretive rule to their example was based principally on the “background understanding that a given interpretation is simply implausible—that it could not possibly have been what Congress wanted.
Congress, we feel sure, would not have intended all National Guardsmen to get a benefit that is otherwise reserved for disabled veterans.” In contrast, in the case at hand (and in general), the usual rules of interpretation will not produce an absurd result.
Put another way, in keeping with the traditional textualist view, absurdity overcomes plain meaning very rarely.
Finally, in keeping with the orthodox textualist approach, Kagan’s opinion belittles legislative history as a useful interpretive tool. The opinion notes that “[t]he legislative materials in these cases consist almost wholly of excerpts from committee hearings and scattered floor statements by individual lawmakers — the sort of stuff we have called ‘among the least illuminating forms of legislative history.’”
To be sure, Kagan does not decimate legislative history writ large as was Justice Scalia’s want. (Justice Scalia found legislative history to be generally uninformative of congressional intent, and also cited constitutional problems with reliance on legislative history.)
The opinion goes on to explain what the little legislative history did offer. Still, the opinion seems to go out of its way to demean what Kagan calls the “lowly” legislative history in the case.
Kagan’s opinion in Advocate Health Care Network is consistent with the swing of the Court, and indeed all its members, toward textualism over the past few decades.
Many Supreme Court opinions, written by justices of various ideological and jurisprudential schools, have recited that the general approach of the Court is textualism. Indeed, the opinion attracted the support of all members of the Court who participated in the case’s disposition.
Even Justice Sonia Sotomayor, who wrote a concurring opinion lodging some concerns about the practical effects of the Court’s holding and questioning whether the result was consistent with Congress’s overarching purpose, joined the Court’s opinion in full.
Still, Kagan’s opinion in this case is exceptional in the degree to which it adheres to textualist orthodoxy. Justice Scalia would be proud.
Jonathan Nash is the Robert Howell Hall Professor of Law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on twitter at @JonathanRNash
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