Rudisill v. McDonough, decided by the U.S. Supreme Court yesterday, involved a statutory claim by a military veteran. The Court majority held for the veteran, concluding that the statute's text was clearly in his favor (even though Justice Thomas in dissent thought it was clearly to the contrary), so the Court did not need to invoke the "veterans canon." That canon (allegedly) directs a court to rule for the veteran if the statute is ambiguous.
Concurring, Justice Kavanaugh, joined by Justice Barrett, had some skeptical thoughts on the veterans canon:
I write separately … to note some practical and constitutional questions about the justifications for a benefits-related canon (such as the veterans canon) that favors one particular group over others. Under the veterans canon, statutes that provide benefits to veterans are to be construed “in the veteran’s favor.” The veterans canon is a substantive canon of statutory interpretation. A substantive canon is a judicial presumption in favor of or against a particular substantive outcome. …
Applying a substantive canon, a court may depart from what the court, absent the canon, would have concluded is the best reading of the statutory text. …the substantive canon would not be necessary or relevant. …
Substantive canons are typically based on background constitutional principles or long-settled judicial understandings of congressional practice. Because a substantive canon by definition has important decision-altering effects, any substantive canon must be sufficiently rooted in constitutional principles or congressional practices.
Here, no one suggests that the veterans canon rests on background constitutional principles. Rather, the canon seems to stem from a loose judicial assumption about congressional intent—in particular, an assumption that Congress intends for courts to read ambiguous veterans benefits statutes more broadly than the courts otherwise would read such statutes.
But what is that assumption based on? The Court has never explained. …
And from later on:
[T]he notion that benefits statutes should be interpreted to favor a particular group creates significant tension with the actual operation of the process by which Congress and the President enact spending laws. To be sure, if someone asked a Member of Congress or the President (or this judge, for that matter) in the abstract, “Should veterans get more benefits?” the answer would be yes. But that question is not (and cannot be) answered in the abstract. The spending process is a zero-sum game, where money spent on one group means less money for other groups and other national priorities.
…
The spending process in Congress requires hard choices with painful tradeoffs. Judges have no principled way to make those choices or weigh those tradeoffs. Nor do judges have a principled way, other than reading the statutory text as written, to conclude that Congress and the President would prefer to favor one group over another—or stated another way in this zero-sum process, to disfavor one group over another.
In addition to that practical problem, judges have no constitutional authority to favor or disfavor one group over another in the spending process. Rather, under the Constitution’s separation of powers, Congress and the President make those policy judgments. See U. S. Const., Art. I, §7, cl. 2; §8, cl. 1; §9, cl. 7. Courts must then neutrally interpret and apply the spending laws enacted by Congress and the President. Courts do so by heeding the statutory
text and employing the traditional tools of statutory interpretation—not by singling out particular groups for favored or disfavored treatment.
Agreed. And this is consistent with my view, expressed here, that substantive canons are more defensible if they are limiting canons (that is, they underenforce laws) than if they purport to allow judges to go beyond the most plausible reading of the statute.
(Thanks to Chad Squitieri for pointing me to Justice Kavanaugh's opinion. Josh Blackman has related thoughts here.)
The Supreme Court also recently decided (on Monday, on the emergency docket) Labrador v. Poe, which among other matters concerned the scope of the injunctive relief given in the lower court. At Volokh Conspiracy, Samuel Bray comments here: Is the Bell Tolling for Universal Injunctions? He describes the multiple opinions, including the opinion of Justice Gorsuch, joined by Thoams and Alito, expressing deep skepticism about "universal" injunctions. From the opinion:
Early in the litigation below, the district court issued a preliminary injunction. Ordinarily, injunctions like these may go no further than necessary to provide interim relief to the parties. In this case, however, the district court went much further, prohibiting a State from enforcing any aspect of its duly enacted law against anyone. Today, the Court stays the district court’s injunction to the extent it applies to nonparties, which is to say to the extent it provides “universal” relief. That is a welcome development.
…
The district court’s universal injunction defied these foundational principles [of injunctive relief]. It did not just vindicate the plaintiffs’ access to the drug treatments they sought. It purported to bar the enforcement of “any provision” of the law against anyone. The district court issued this sweeping relief even though, by its own admission, the plaintiffs had failed to “engage” with other provisions of Idaho’s law that don’t presently affect them—including the law’s provisions prohibiting the surgical removal of children’s genitals. In choosing such an extraordinary remedy, the district court clearly strayed from equity’s traditional bounds.
This also seems correct to me. "Universal" injunctions (at least as in the Labrador case) and substantive canons (at least, substantive canons like the veterans canon) both involve courts going beyond the appropriate judicial role and becoming lawmakers. They are, one might say, exercising will instead of judgment.
Posted at 6:13 AM