Tuesday, July 14, 2015

When does statutory purpose matter to statutory meaning, and why?

Two Supreme Court statements about the role of a statute’s purpose in its interpretation:

From Baker Botts LLP v. Asarco LLC, a case decided on June 15, 2015 that finds that bankruptcy attorneys are not entitled to court-ordered attorneys’ fees to compensate them for the time they spent in litigating their right to attorneys’ fees for their work on the underlying bankruptcy itself, this observation by Justice Thomas for a majority of the Court:

Our job is to follow the text even if doing so will supposedly “undercut a basic objective of the statute….”

And from Texas Department of Housing and Community Affairs v. Inclusive Communities Project, the case decided June 25, 2015 that holds that the Fair Housing Act prohibits not only intentional discrimination but also other conduct, not necessarily meant to discriminate, that has discriminatory effects, this comment by Justice Kennedy, again for a majority of the Court (which I quoted in my earlier post about this case):

[A]ntidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose.

Why does statutory purpose matter in one case, and not in the other? The question is especially pointed because Justice Kennedy, the author of the Inclusive Communities decision, was also one of the justices concurring in Justice Thomas’ opinion in Baker Botts. Hasn’t he just endorsed two contradictory views of the importance of congressional purpose?

No. The crucial distinction (not the only one, but I’ll leave a more complete account for some other day) between the cases is the one Justice Kennedy himself points to in the Inclusive Communities passage: in this case he is explaining how “antidiscrimination laws must be construed.” This case tells us that Justice Kennedy, and the Court, will not read the words of a discrimination statute – a race discrimination statute in particular – without attention to what that statute means in our society, with its agonizing history of race discrimination. He, and the Court, are prepared to insist on the full rigor of an exclusive focus on the text when what’s at issue is merely the distribution of money between powerful private actors like Baker Botts and Asarco. But when the stakes, the constitutional stakes, are truly high, a majority of the Court will keep them in mind as it reads and interprets Congress’ words. And that is good news.

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