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An Odd Example of Missing-Text Textualism?



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In its decision yesterday in Astrue v. Capato, the Supreme Court unanimously ruled that children conceived after the death of their father (in that case, via in vitro fertilization using the dead father’s frozen sperm) would qualify for Social Security survivor benefits under federal law only if they could inherit from their father under state intestacy law. On a quick read, Justice Ginsburg’s opinion for the Court strikes me as thorough and persuasive, but I was struck by one oddity. Specifically, although the ruling turns heavily on 42 U.S.C. § 416(h)(2)(A), Ginsburg somehow never sees fit to quote the actual portion of the provision on which she is relying. Instead, she writes (bracketed material in Ginsburg’s opinion):

Under the heading “Determination of family status,” §416(h)(2)(A) provides: “In determining whether an applicant is the child or parent of [an] insured individual for purposes of this subchapter, the Commissioner of Social Security shall apply [the intestacy law of the insured individual's domiciliary State].”

How peculiar to see the gist of the quoted section recast in a bracketed paraphrase.

As the reader will see from the hyperlink above, the relevant portion of § 416(h)(2)(A) actually reads:

In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia.

Simply as a matter of judicial craftsmanship, I think that it would have been better for Ginsburg to have quoted the relevant portion in full and then to have stated that the text means that the Commissioner of Social Security shall apply the intestacy law of the insured individual’s domiciliary state.

Lest I be thought to be picking on Ginsburg, I also find it odd that none of the other eight justices evidently thought it worthwhile to recommend this change.

That evident failing calls to my mind the broader issue of the extraordinary deference that the culture of the Supreme Court accords the writing justice—or at least that it accorded when I was a law clerk two decades ago. I was struck back then by the fact that the sorts of uncontroversial editing suggestions (e.g., making the argument tighter, eliminating infelicitous phrasings) that were routinely offered from chambers to chambers when I was a Ninth Circuit law clerk were seldom made at the Supreme Court. The end result was a large number of opinions by certain justices that weren’t very well crafted and that generated unnecessary confusion. (That may be much less of a problem now, as I think it’s fair to say that, matters of judicial ideology aside, the overall craftsmanship level of the current justices is markedly higher than it was twenty years ago.)



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