In Advocate Health Care Network v. Stapleton, issued today, Justice Kagan wrote a unanimous opinion for the Court on an ERISA issue. But Justice Sotomayor somehow saw fit to write a brief concurring opinion, the heart of which is this badly confused series of observations (citations—none to precedents—omitted; emphasis added):
I join the Court’s opinion because I am persuaded that it correctly interprets the relevant statutory text. But I am nonetheless troubled by the outcome of these cases. As the majority acknowledges, the available legislative history does not clearly endorse this result. That silence gives me pause: The decision to exempt plans neither established nor maintained by a church could have the kind of broad effect that is usually thoroughly debated during the legislative process and thus recorded in the legislative record. And to the extent that Congress acted to exempt plans established by orders of Catholic Sisters, it is not at all clear that Congress would take the same action today with respect to some of the largest health-care providers in the country.
If Sotomayor is “persuaded” that Kagan’s opinion “correctly interprets the relevant statutory text,” why is she “nonetheless troubled”? For two reasons, apparently.
First, because the legislative history is silent on the question. Sotomayor has zero legislative experience, yet she imagines herself competent to assess what sort of decisions are “usually thoroughly debated during the legislative process.” And even if she were competent to make such an assessment, how could it matter that the “silence” of legislative history “does not clearly endorse” the statutory reading? Is she suggesting a rule under which the best statutory reading must also be supported by the legislative history, at least where she would expect the matter to have been “thoroughly debated”? So where the legislative history is silent, would she then sometimes pick an inferior statutory reading?
Second, Sotomayor muses that “it is not at all clear that Congress would take the same action today”?!? But what possible bearing does that have on interpreting an existing statute?