Here, in any event, I want to put to one side the question of Congress' intentions (as manifested in the legislative history, whose various elements the justices scrutinize), in order to focus just on the text of the statutory provision at issue. A textualist must come to grips with the text. To be sure, a textualist can rightly consider other parts of a statute (or even of other laws) in order to determine the meaning of the particular bit of text at issue in a case, and I'm going to leave to one side as well the question of whether other parts of the Vaccine Injury Act weighed in the Court's favor. It seems to me as a general proposition, however, that a textualist must find something very strong in other parts of a statute or other laws to justify avoiding the apparent meaning of the words directly at issue, and I doubt that there was anything strong enough to justify the extent of the avoidance in this case.
Let's look at the statute. As Justice Sotomayor says in dissent, the act asserts as a general rule that state law -- this would be the body of law governing liability for defective products -- governs vaccine cases. (42 U.S.C. 300aa--22). It goes on to state exceptions, including this one, 42 U.S.C. 300aa--22(b)(1):
"No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings."
What's wrong with the majority's argument that this statute bars all lawsuits for vaccine design defects, as long as the vaccine was "properly prepared" and came with "proper directions and warnings"? Here are several answers (most or all covered by Justice Sotomayor in her very effective dissent, which to my mind persuasively refutes the majority opinion by Justice Scalia, himself a master of statutory interpretation argumentation):
(1) The statute never says anything explicitly about design defects at all. If Congress had wanted to preclude all litigation based on design defects, it could have said "There is no liability for design defects." In fact, the statute doesn't even say in so many words that it has any relation to design defects at all. But it does, I believe: evidently vaccine litigation dealt with three issues -- warnings, preparation and design -- and the first two are explicitly referred to, suggesting that the discussion of "unavoidable side effects" is meant to refer to side effects from the third source, design. And while it is true that the statute fails to say "There is no liability for design defects," it also fails to say, "Liability may be found for design defects." So the argument from lack of explicitness is not conclusive, though I think the statute does come closer to explicitly affirming liability for design defects that aren't "unavoidable" than it does to explicitly denying such liability.
(2) The "if" clause (as Justice Sotomayor labels it): The statute says that manufacturers aren't liable "if the injury or death resulted from side effects that were unavoidable...." The use of the word "if" suggests that "if not" is also conceivable -- in other words, that some side effects are unavoidable but some are avoidable. But for the majority, as long as proper manufacture and warning are taken care of, there is no possibility of liability for design defect. In other words, there is no such thing as an "avoidable" side effect from a vaccine that is properly prepared and accompanied by proper warnings. This is an odd idea at best -- although evidently some courts in the years leading up to this statute had taken essentially this view -- and it's an idea that is very poorly conveyed by a clause beginning with "if."
(3) The meaning of the word "unavoidable": The majority maintains that if the design of a vaccine results in the risk of side effects, those side effects are unavoidable. But what if they could have been avoided by a different design? In that case, they just aren't "unavoidable" and so, for the statute to mean that all such side effects count as unavoidable, the word "unavoidable" has to have taken on some very odd definition, such as "avoidable, but not by this design" -- and textualists seek ordinary usage as a general rule, not idiosyncratic definitions, especially ones that are never spelled out.
To be sure, there's an exception to this focus on ordinary usage, for words that have become terms of art. There is in fact considerable discussion in the case of whether "unavoidable" was a term of art, but no one asserts that if it was a term of art, the consensus meaning it had acquired was "avoidable, but not by this design."
Somewhat remarkably, the majority claims that if "unavoidable" is read to mean "not avoidable by a different design" then "the word 'unavoidable' would do no work" (majority opinion at 7), on the ground that "[a] side effect of a vaccine could always have been avoidable by use of a differently designed vaccine not containing the harmful element." But Justice Sotomayor responds that "the harmful element" might be essential to the vaccine's efficacy, and that it's precisely in such cases that the side effects deserve to be called "unavoidable" -- whereas in other cases the side effects might have been avoided by better design, and would then be "avoidable." (Dissent at 14-15.)
(4) As Justice Sotomayor emphasizes, and the majority concedes, the net effect of the majority's reading is that 13 words of the statute -- italicized below -- turn out to have no meaning and to be completely superfluous:
"No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings."
This is just a huge problem for a textualist. Though I don't claim to have read every case where such issues have arisen, I've never encountered a case where a textualist such as Justice Scalia accepted so extensive a violation of the well-known interpretive principle that statutes should be read so that every word has meaning. What the majority says is that this violation isn't determinative, because (says the majority) on the dissent's reading another set of 15 words become superfluous -- the ones italicized here (the "even though" clause of the statute):
"No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings."
Scalia's argument is that for the dissent there's only one question -- were the side effects "unavoidable." (Majority opinion at 12.) But Sotomayor responds that the "even though" clause does have a function: it establishes that "unavoidable" side effects resulting from design defects are only exempt from liability if the vaccine was properly prepared and came with proper directions and warnings. If a manufacturer fails to prepare the vaccine properly or provide the directions and warnings that should accompany it, then even if the side effects of its design really are unavoidable, the manufacturer remains liable for them. It seems to me that this reading gives content to the "even though" clause, and therefore that the interpretive rule against finding portions of a statute superfluous quite clearly favors Sotomayor's reading.
(5) But the "even though" clause may also provide the strongest textual argument in favor of the majority's position. To say that "side effects ... were unavoidableeven though the vaccine was properly prepared and was accompanied by proper directions and warnings" seems to say that what might have made them avoidable was proper preparation and/or proper directions and warnings. The side effects are unavoidable even though -- despite, as Scalia says -- proper preparation, directions and warnings. Sotomayor's reading, on the other hand, seems to make "even though" mean "provided that" -- manufacturers aren't liable for unavoidable side effects provided that the vaccines were properly prepared and came with proper directions and warnings. Scalia gives this point a grammatical tag, telling us that the "even though" clause is "called a concessive subordinate clause by grammarians." (Opinion at 11.)
I think Scalia is right that Sotomayor's reading isn't "concessive." But the "even though" clause is awkward for all sides in this debate. After all, what makes the side effects unavoidable, on the majority's reading of the statute? The answer might be that we know these side effects are unavoidable "because" neither better preparation nor better directions and warnings could have avoided them. Otherwise their unavoidability is altogether undefined. "Because" is usually quite a ways from "even though," as Sotomayor argues (dissent at 17 n.14), but here, oddly, the meaning of these words seems to coincide. I think that on this score Scalia's reading is the more natural. Yet it's worth noting, as Sotomayor does, that Scalia's reading -- as discussed above -- actually means that the words "even though," along with the 11 words preceding them, lose all meaning, so that his emphasis on fidelity to the import of a concessive subordinate clause seems somewhat unsatisfactory. I think the main lesson to be drawn is that the statute is, truly, badly drafted. On balance, I also think Sotomayor's reading does a better job of giving meaning to as many words of the text as possible.
In short, I don't think the majority's reading of these words is easy to sustain on textualist grounds -- yet Justice Scalia is committed to textualist interpretation. Justice Sotomayor says that the majority's decision is "policy-driven," though she does so only in a footnote almost at the end of her opinion (dissent at 27 n.25). If I am right about the relative weakness of the textualist arguments in favor of the majority's position, that does suggest that something else -- policy -- drove the Court's thinking. It's possible to defend policy-driven statutory interpretation -- but not on textualist grounds. Indeed, textualists have been outspoken in objecting to other methods of interpretation, in which judges read statutory language in light of other evidence of legislators' specific intentions or broad purposes, as giving judges too much room to enact their own preferences into law. All of which makes Bruesewitz a problem for textualists.
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