Justice Jackson’s Misguided Attack on Written Law

As a progressive judge, when Kagan thinks you’re wrong and Sotomayor thinks you’ve gone overboard, you should rethink your choices.

T he Supreme Court cases that set off the fiercest conflicts among the justices aren’t always the hot-button ones. Consider last week’s decision in Stanley v. City of Sanford. The Court took the case because the plaintiff asked it to resolve a long-standing circuit split on a fairly prosaic question of employment law: whether the Americans with Disabilities Act of 1990 (ADA) protects disabled retirees from discrimination regarding their retirement benefits that occurs after they’ve retired. The Court, in a 7–2 opinion by Justice Neil Gorsuch, said no.

The stakes were fairly low: retiree claims are a modest corner of ADA litigation, and they are covered to some extent by other federal as well as state statutes. Even Gorsuch’s opinion noted that there could be other ways for some retirees to bring claims, possibly including this very plaintiff if her lawyers had handled her case differently. At any rate, if Congress dislikes the outcome, it could revisit the question with a narrow fix. Even Justice Elena Kagan joined the majority’s straightforward analysis of the statutory text.

Yet Stanley produced an anguished and histrionic dissent from Justice Ketanji Brown Jackson that included an assault on textualism so overwrought that even Justice Sonia Sotomayor pointedly refused to join the footnote that included it. As a progressive judge, when Kagan thinks you’re wrong and Sotomayor thinks you’ve gone overboard, you should rethink your choices.

Stanley also produced a second set of sideshows over exactly what questions the Court should be deciding, after the plaintiff tried to change her argument from the one that produced the circuit split and got her case taken up in the first place. This resulted in more bitter sniping between Gorsuch and Jackson, while Justice Clarence Thomas — joined by Justice Amy Coney Barrett — bemoaned game-playing lawyers and implicitly criticized both Gorsuch and Jackson for letting the lawyers get away with it. The section of Gorsuch’s opinion analyzing and rejecting the new argument was joined by only two of the justices (Kagan and Justice Samuel Alito) who signed the rest of the opinion, plus Sotomayor, who had disagreed with the rest of the opinion. It was a sharp break from an extended stretch of unanimity on the Court.

The Text

Gorsuch framed neatly the legal question the Court was asked to resolve:

Title I of the Americans with Disabilities Act bars employers from “discriminat[ing] against a qualified individual on the basis of disability.” . . . The statute defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” . . . The question before us concerns whether a retired employee who does not hold or seek a job is a “qualified individual.” [Citations omitted]

What did Congress mean by training the law’s language on qualified individuals? As the Court noted, it meant to protect disabled people who are looking for work and can do a given job with reasonable accommodations from being turned down because of prejudices against their disabilities:

Those present-tense verbs signal that [the ADA] protects individuals who, with or without reasonable accommodation, are able to do the job they hold or seek at the time they suffer discrimination. Conversely, those verbs tend to suggest that the statute does not reach retirees who neither hold nor desire a job at the time of an alleged act of discrimination. . . .

Title I, recall, prohibits discrimination against an individual who can perform essential job functions “with or without reasonable accommodation” [such as] modifying “existing facilities used by employees.” . . . Those kinds of accommodations make perfect sense when it comes to current employees or applicants. But it is hard to see how they might apply to retirees who do not hold or seek a job. . . .

For instance, [one] subsection . . . defines discrimination to include using certain “qualification standards, employment tests or other selection criteria” unless they are “job-related for the position in question.” Plainly, that mandate aims to protect jobseekers. But it makes no sense in the context of retirees who do not seek employment. [Quotations and citations omitted.]

This is not a novel reading of the statute. If you are, like me, old enough to remember the ADA’s passage, this was the central theme of proponents of its employment protections: that disabled people could work and support themselves if reasonable accommodations unrelated to the job requirements were made — the paradigm case being an office worker in a wheelchair doing a desk job. Employers weren’t hiring them because of stereotypes or concerns about the costs of accommodation, the thinking went, so Congress should eliminate those obstacles.

Jackson, in attacking Gorsuch’s reading of the law’s language, had no real leg to stand on. Her best case from the text was to argue that it was not completely clear:

Title I’s text and overall scheme do not foreclose — much less unambiguously so — retirees’ ability to sue over discrimination in the postemployment payout of benefits they earned on the job. . . . Title I does not categorically exclude former employees or retirees from the ADA’s protection. Nor does it explicitly carve out postemployment discrimination as nonactionable. Nothing in the statute actually says that one must currently hold or desire a job to obtain protection from the forms of disability discrimination that Title I prohibits. And Title I does not place a temporal limit on the reach of its protections.

Her efforts to pose realistic hypotheticals were pitiful:

What if the retired janitor can no longer perform her janitorial work, but she takes on a lighter job with a different employer? Without question, she “can perform the essential functions of the [new] employment position that [she] holds.” . . . Given that she currently holds a job, can she now (even under the majority’s reading) sue her former employer for its disability discrimination with respect to her retirement benefits? Following the majority’s textualism to its logical conclusion, the answer suddenly would seem to be yes.

In the real world, if we apply language in the way that humans customarily do, a law that bars “discriminating against a qualified individual” who “can perform the essential functions of the employment position that such individual holds or desires” will apply to the person or company that is doing the hiring — not to that person’s pension from some job the person used to hold. Yet, Jackson had the gall to accuse Gorsuch of blind literalism.

Congress Writes Laws Down for a Reason

Having lost the argument about the text that Congress wrote, Jackson appealed instead to its purpose, which she framed with a quote from PGA Tour, Inc. v. Martin (2001), describing the ADA as “a milestone on the path to a more decent, tolerant, progressive society”:

I would adopt the statutory reading most consistent with the overall design of Title I. Congress passed the ADA to protect people with disabilities, and it crafted Title I, in particular, to provide disabled workers with meaningful protections against disability discrimination in the provision of job-related retirement benefits. To properly evaluate the intended scope of Title I’s protections, courts need to situate its provisions within that broader context.

But Jackson’s opinion did little to substantiate with evidence from 1990 her view of what the ADA’s specific purposes and objectives were. She said that “Title I’s protections encourage disabled Americans to enter the workforce and have an equal opportunity to earn all that a good job brings to workers and their families,” but that is equally consistent with the notion that the statute’s focus was on hiring disabled workers. Similarly, consider Jackson’s argument that the statutory language about qualified employees should be disregarded when protecting retirees:

A retiree seeking to remedy discrimination as to the payout of benefits already earned on the job . . . does not trigger the concerns that motivated Congress to craft a qualified-individual metric. . . . Unlike allowing disability discrimination against someone who is or seeks to be in the workforce but cannot do the job, authorizing disability discrimination against a retiree who was in the workforce, but has now left it, has nothing to do with the problem Congress was addressing when it imposed the conditions in the qualified individual definition.

That’s just as compelling an argument for the idea that the qualified-employee restriction signals that the statute’s protections are focused on qualified employees seeking work — exactly what the majority concluded.

It was when Gorsuch accused Jackson of discarding the text because it was an obstacle to her desired result that Jackson blew a gasket, in the footnote that Sotomayor refused to join:

The majority’s contention that I reject “‘pure textualism’ as insufficiently pliable to secure the result I seek,” . . . stems from an unfortunate misunderstanding of the judicial role. Our interpretative task is not to seek our own desired results (whatever they may be). And, indeed, it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best we can ascertain its intent. A methodology that includes consideration of Congress’s aims does exactly that — and no more. By contrast, pure textualism’s refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. By “finding” answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as “textual” inevitabilities. So, really, far from being “insufficiently pliable,” I think pure textualism is incessantly malleable — that’s its primary problem — and, indeed, it is certainly somehow always flexible enough to secure the majority’s desired outcome.

My, how Jackson’s tune has changed from what she told the Senate about her interpretive methods when she was seeking this job — but then, there’s all the difference in the world between seeking the job and having it.

Jackson’s charge has been a common theme of critics of textualism and its constitutional cousin, originalism, advanced by progressive judicial critics as well as their media cheerleaders such as Mark Joseph Stern: that textualism doesn’t actually constrain judges and is nothing but a mask for conservatives to do what they want. Now, it is true that a textualist methodology is no guarantee that judges will get the right answer every time, for several reasons. First, lawyers are clever at making arguments, which is why there’s a lawyer arguing both sides of any issue that gets to the Court. Second, Congress doesn’t always write that clearly, and some questions are harder to get right than others, which is one reason why many of the cases that reach the Court have entire circuit courts on both sides. Third, judges are fallible, and they can make mistakes of logical reasoning even when they’re doing their level best. And fourth, there’s no methodology that can’t be abused by bad-faith actors.

What is conspicuous by its absence from these critiques, however, is any reason to believe that following the statutory “purpose” is more constraining for the courts. In fact, it’s quite clear that the opposite is true. Judges can be very creative in describing what they think a statute was meant to do. Jackson’s own analysis blew completely by the major focus of the ADA on hiring. And as Gorsuch noted, most statutes (including the ADA) are compromises: While the purpose of some proponents may be broad and general, the nature of the finished product reflects a balancing of interests — which is why Congress acted with care in defining terms such as “qualified employee” and “reasonable accommodation” to serve the additional statutory purpose of not unduly burdening employers. Jackson picked and chose which purposes mattered and which did not.

This is why Congress writes laws down, and why it votes on those written laws rather than on general statements of purpose.

If cases were meant to be decided by looking at the general goals of statutes rather than their text, Congress could just pass a bunch of one-sentence aspirations and leave the details to the courts. On a few occasions, it has done exactly that: the Sherman Antitrust Act of 1890 has long been understood as a warrant for the federal courts to develop a common law of antitrust. But Congress spent a lot of time and effort writing statutes such as the ADA, drafting multipart sections and including lists of definitions of terms. That effort itself shows that Congress wanted the language to be taken seriously. Jackson ignores the most compelling evidence of statutory intent, which is the intent to write a statute.

The most notorious recent example of the malleability of appeals to statutory purpose came in the now discredited Obamacare case of King v. Burwell (2015). As I summarized the case a few years ago:

The Court in King v. Burwell upheld a rule passed by Obama’s IRS that extended subsidies to buyers [of health insurance policies] on the federal exchanges. To reach that conclusion, however, the Court had to leapfrog the language of the statute, which made its meaning obvious in four ways (all emphasis added):

1. It tied subsidies to policies purchased on “an Exchange established by the State.”

2. It defined “State” as “each of the 50 States and the District of Columbia,” rather than the federal government.

3. It further limited the definition of an “Exchange established by the State” to one established “under Section 1311” of the ACA (42 U.S.C. §18031), a provision that dealt with state-established exchanges, while a different section (42 U.S.C. §18041), which was not referenced in the subsidy provision, dealt with federally established exchanges.

4. It used the phrase “established by the State” elsewhere in ways that could not be construed to refer to the federal government.

Hanging a gigantic red flag on this evasion of the statutory language, the IRS rule said that subsidies would be available “regardless of whether the Exchange is established and operated by a State . . . or by HHS” (emphasis added) — in other words, the rule specifically said it would apply regardless of the very terms used in the law. The IRS was originally uncomfortable doing this; a subsequent congressional investigation revealed that IRS and Treasury officials were concerned the law had left out the federal exchanges through a “drafting oversight,” expressed concern that there was no direct statutory authority for proposing the rule, and asked HHS to come up with a basis for doing so.

There were reasons to believe that Congress’s not including subsidies for the federal exchanges was an intentional omission, perhaps either to incentivize state exchanges or to game the Congressional Budget Office score for the bill. But the Court ignored those purposes. Instead, Chief Justice John Roberts wrote: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

What the Court should have done in King was leave to Congress the assessment of which policy choices would improve markets and which would destroy them. The Court ended up effectively admitting in Digital Realty Trust, Inc. v. Somers (2018) that King is not a real precedent and should not be cited in other cases given its defective methodology. But Jackson still wants it to be 2015.

Bait and Switch

The plaintiff’s lawyers in Stanley, undoubtedly realizing the weakness of her statutory argument, crafted a different theory: that she was discriminated against during her employment when the retirement policies were changed, even though they only affected her later. The Court was divided on whether to address this argument, for two reasons. First, it was a change from the theory that was presented in the petition. Second, the Eleventh Circuit had determined that the argument hadn’t been presented below and was waived — and the Court typically defers to lower courts to decide such questions.

Jackson attacked the seven-justice majority for considering the plaintiff’s original argument. Gorsuch reacted with incredulity, writing that Jackson “ignores both why we took this case and the arguments of the parties before us.” Thomas, joined by Barrett, weighed in solely to smack down the lawyers’ gamesmanship:

I write separately to express my concern with the increasingly common practice of litigants urging this Court to grant certiorari to resolve one question, and then, after we do so, pivoting to an entirely different question. This case exemplifies the problem. . . .

Redirecting our focus to a different question is . . . highly disruptive to our deliberative process, as it often leads to a lack of adversarial briefing. . . . Moreover, redirecting our focus to a different question has the effect of undermining this Court’s efforts to manage its merits docket. . . .

I encourage litigants before this Court to remain focused on the questions presented in the petition for a writ of certiorari — and only those questions — after this Court grants certiorari. Redirecting us to a different legal question at the merits stage can be disruptive, inefficient, and unfair to all involved. Of course, Stanley is not the first litigant to resist the question presented before this Court. I hope, however, that this Court and future parties will take seriously the obligation to adhere to the question presented.

Thomas was unsparing in detailing how the “bait and switch” worked, with copious citations to the petition-stage briefing:

Stanley mentioned over two dozen times in her petition that this question has divided the courts of appeals. . . . Stanley emphasized that this Circuit split was “dispositive” in her case, as her suit was “stymied by the Eleventh Circuit’s determination that she wasn’t a ‘qualified individual’ at the time of the discrimination.” . . . Stanley described the Circuit split as “‘intractable,’” “deep,” “well-recognized,” and “persistent.” . . . She also conveyed a sense of urgency, telling us that the Circuit split is “growing,” and unlikely to be resolved without “this Court’s intervention.” . . . Stanley’s emphasis on the Circuit split was understandable, as it is no secret that Circuit splits get our attention.

Stanley also emphasized in her petition that the question dividing the courts of appeals is one of “obvious importance.” . . . She conveyed that “[t]he circuit split matters for the forty-four million Americans with disabilities whose rights under the ADA, until the split is resolved, may depend on their employers’ zip codes.” . . . “The persistence of the circuit split,” she told us, “means that disabled former employees only in certain parts of the country can vindicate their rights under the ADA.” . . . Stanley further assured us that this case would be a good one for resolving the Circuit split. She told us that her case “cleanly tees the issue up for this Court’s resolution as a pure question of law with no relevant factual disputes.” . . . She reiterated that point in her reply brief at the certiorari stage, telling us that “[t]his case is a clean vehicle with no impediments” to settling the Circuit conflict once and for all. [Quotations and citations omitted.]

“Stanley asked this Court to grant certiorari to resolve a discrete Circuit split,” Thomas concluded. “After we agreed to do so, she asked us to resolve an entirely different legal question. I do not find it ‘profitable’ [Gorsuch’s word] to reward Stanley’s bait-and-switch in these circumstances.”