If judicial governance is worrisome, as I urged in my last post, how can we, and the judges themselves, avoid it? One answer is to agree on a set of interpretive rules, and follow them faithfully. This is a meaningful strategy; law needs to consist, in part, of rules and unhesitating rule-enforcers. I think it's probably also the case that if judges are confident in each other's broad fidelity to a set of neutral rules, they may be more comfortable with the use of more value-driven approaches brought in as threads in the weave, since they know that the threads are not being made the fundamental pattern of the whole effort.
I’m inclined to think that this is what has happened in the Supreme Court’s statutory interpretation jurisprudence. Today the Supreme Court seems to have achieved a measure of comfort with a largely textualist approach to statutory interpretation. Considerations of legislative purpose do get invoked, but rarely as the dominant guide to meaning.
But there is a price, in a certain studied inattention to legislative purpose. The strikingly named case of Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (No. 11-246, decided by the Supreme Court on June 18, 2012), illustrates this problem.
The case was a lawsuit brought by Mr. Patchak to challenge the Secretary of the Interior's acquisition of a piece of land to be held in trust for the Indian Band so that the Band could build a casino there. The land itself is in Michigan, and this was at least the second lawsuit seeking to stop the plan in its tracks; the first was brought by a group called Michigan Gambling Opposition (MichGO), and when that one failed Patchak, a MichGO member, brought this case. But the case amounted to a suit against the United States, and the United States is immune from suit unless it has waived its sovereign immunity, so the issue before the Court was whether the United States had in fact waived its sovereign immunity to such suits.
As a general matter, the U.S. has waived its sovereign immunity, under the Administrative Procedure Act (APA), for suits “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U.S.C. § 702. Since Patchak was not seeking money damages (he just wanted a determination that the US did not validly own the land), and since he attacked the Secretary of the Interior's official actions (on the ground that the Band wasn’t recognized as a tribe when the statute authorizing such land acquisitions was enacted), the Court felt that this language covered Patchak, except for one problem. The problem was that section 702 of the APA has an exception: "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." Here, a statute called the Quiet Title Act permits suits against the U.S. to "quiet title" (I'll come back to what "quieting title" is in a moment) – and this Act has an exception, covering suits over "trust or restricted Indian lands,” 28 U.S.C. § 2409a(a).
So one way to approach the case was to ask whether Patchak's suit was a "quiet title" case. If it was, then the "Indian lands" exception applied to it and the case was barred by sovereign immunity. 8 justices agree, for quite persuasive reasons that Justice Kagan describes in her opinion for the Court, that Patchak's suit was not a quiet title action, because those lawsuits are cases in which the person bringing suit has some sort of claim of ownership of the property in question (and wants to "quiet" adverse claims). But Patchak had no such claim; he didn't own the land but just wanted to prevent the United States from taking the land and enabling the Band to put a casino on it.
Only Justice Sotomayor disagreed. She pointed out that:
The majority's conclusion hinges, therefore, on the doubtful premise that Congress intended to waive the Government's sovereign immunity for those like Patchak, who assert an "aesthetic" interest in land ..., while retaining the Government's sovereign immunity against those who assert a constitutional interest in land -- the deprivation of property without due process of law. This is highly implausible. Unsurprisingly, the majority does not even attempt to explain why Congress would have intended this counterintuitive result. (Sotomayor dissent at 8.)
What the majority says about Sotomayor's point is this:
The Band assumes that plaintiffs like Patchak have a lesser interest than those bringing quiet title actions, and so should be precluded a fortiori. But all we can say is that Patchak has a different interest. Whether it is lesser, as the Band argues, because not based on property rights; whether it is greater because implicating public interests; or whether it is in the end exactly the same – that is for Congress to tell us, not for us to tell Congress. As the matter stands, Congress has not assimilated to quiet title actions all other suits challenging the Government’s ownership of property. (Majority opinion at 14.)
Sotomayor is not quite fair when she says that the majority “does not even attempt to explain why Congress would have intended this counterintuitive result,” for the majority does try both to say that the result isn’t necessarily counterintuitive and that there might be a reason for it (namely that Patchak’s suit, unlike the suit of a putative owner seeking to “quiet” claims against him or her, “implicat[es] public interests”). But it is entirely fair to say that the majority doesn’t assert that this rationale in fact was Congress’ reason for legislating as it did. The majority leaves the question of what Congress had on its mind unresolved, because it concludes that the text is clear.
In short, to embrace the text the majority must cast aside the temptations of inference about Congressional purpose. The result is a sort of willed ignorance. Willed ignorance may often be preferable to imagined understanding – to the kind of adjudication in which judges infer Congress’ veiled purpose, often no doubt discerning a purpose remarkably in concert with the judges’ own values, and then impose that purpose on the language. But at the same time we must accept that the court’s disclaimer of understanding must restrict its ability to enable Congress to accomplish what it actually set out to do. That seems to implicate the concern Justice Breyer -- who here joins the majority -- raised in his dissent in the farmer-bankruptcy case I discussed a few days ago:
I believe it important that courts interpreting statutes make significant efforts to allow the provisions of congressional statutes to function in the ways that ... the elected branches of Government likely intended and for which it can be held democratically accountable.