Asher Steinberg at The Narrowest Grounds: Supreme Court 2016 Term in Review: (Apparent) Mistake, Another Textualist Possibility Unexplored in SW General. From the introduction:
Have you ever said to someone, "I don't think that means what you think it means," or more declaratively, "that doesn't mean what you think it means"? If so, you're familiar with the concept of linguistic mistake, as distinct from linguistic accident, or what lawyers call scrivener's or drafting error. When you tell someone that what they said doesn't mean what they think it means, what you mean is that you think they intended to say precisely the words they said, but that, because they seem to intend to convey something other than what they said means, they are likely mistaken about the meaning of the words they said.
For example, if a wise but unpolished student writes on an exam, "the Court shouldn't of avoided the Chevron question in Esquivel-Quintana, that was a really lame move," it is possible that the student intended both to use a semicolon and write "shouldn't have" and accidentally wrote "shouldn't of" and used a comma in a hurry. But it is just as possible and probably more likely that this student intentionally wrote "shouldn't of" because he mistakenly believes, as many people do, that "shouldn't of" is a grammatical construction that means "shouldn't have," and also quite likely that the student intentionally used a comma because he mistakenly believes that commas can link independent clauses that can only be linked by semicolons. When Congress makes that sort of an error, it hasn't engaged in scrivener's error, properly understood. The metaphorical scrivener's metaphorical pen didn't slip; the text Congress enacted was the text it meant to enact. Congress was just mistaken about the meaning of the words it deliberately used.
On the other hand, if your boss (or Congress) tells you to file an appeal in no less than seven days, you won't think he meant to say what he said, or is mistaken about the meaning of what he said; you'll likely believe he meant to say "more" and accidentally said less. You won't think he mistakenly believes that "less" means more, since no one fully conversant in English does. When Congress makes this sort of an error, it has engaged in scrivener's error. The scrivener's pen did slip, those members of Congress and staffers who read the text didn't catch it, and Congress voted for and enacted a text other than the text it intended to enact.
And from the conclusion:
Textualists are not concerned with actual intentions, only "objectified" or apparent ones. Actual intentions are for intentionalists. However, for a linguistic mistake to be apparent, it first must be possible. We simply don't know anyone who mistakenly thinks that "less" means "more," so when Congress says "no less than seven days" and seems to have meant "no more," we don't say that Congress seems to have been mistaken about the meaning of "no less"; we say that Congress seems to have accidentally written "no less" and think of the problem in terms of scrivener's error, for which we require certainty. Linguistic-mistake readings of statutes are only viable when the mistake in question is conceivable, and to be conceivable, it helps if we know of some cases where it's happened. One reason that it's so easy to assume someone thinks "principle" means "principal" is that many people do. And one reason Scalia was willing to read "defendant" to mean "criminal defendant" in Bock Laundry is that people sometimes mean defendant that way "in normal conversation." Indeed, many non-lawyers may mistakenly believe that the only people called "defendants" are criminal defendants. Some of them are probably in Congress.
Senator Thompson, then, is relevant to a claim that Congress's apparent intention in writing "notwithstanding subsection (a)(1)" was to communicate the idea "but as to subsection (a)(1)," not because he shows that it was Congress's intention, but because he shows that it could have been the intention of a normal speaker using Congress's words. Once you read Thompson confidently asserting that "notwithstanding subsection (a)(1)" meant that (b)(1) only limited (a)(1), not (a)(2) or (a)(3), it's no longer so hard to imagine a Holmesian normal speaker of English mistakenly thinking "notwithstanding" means "but as to." Apparently, it happens.
* Acknowledgements to Mitchell Berman's typology of legislative intent in "The Tragedy of Justice Scalia"—one of the few truly excellent and practically useful bits of interpretive scholarship in the last few years—for suggesting much of this post, though I dissent from his judgment of Scalia as a tragic figure.
From prior posts in this series, see here and here.
Posted at 6:54 AM