The Volokh Conspiracy

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To Serve Ceviche

Justices Sotomayor and Gorsuch spar over the Peruvian delicacy.


On Friday, the Supreme Court decided Yellen v. Confederated Tribes of Chehalis Reservation. But the companion case better describes the dispute: Alaska Native Village Corp. Association et al. v. Confederated Tribes of the Chehalis Reservation et al. Here, Indians were not suing the federal government for the denial of benefits. To the contrary. The Treasury Department wanted to provide about $500 million of CARES Act funding to Alaska Native Corporations (ANC). But other Indian tribes sued the Treasury, arguing that the small ANCs were not entitled to the funds. You see, the amount of money allocated for Indian tribes was fixed. And if ANCs received more, other tribes received less. This case presented a dispute between Indians.

Justice Sotomayor wrote the majority opinion. She was joined by Chief Justice Roberts, and Justices Breyer, Kavanaugh, and Barrett. Justice Alito joined all of the opinion, except for Parts II-A and II-B. (He did not explain why he disagreed with those parts, which were quite important). Justice Gorsuch dissented, and was joined by Justices Thomas and Kagan. I believe this is the first time this 6-3 split emerged. Indeed, this was one of the rare times this Term that Justices Sotomayor and Kagan disagreed.

I don't know nearly enough about federal Indian law to decide which opinion has the better argument. The majority and dissent disagreed about the series-qualifier canon, which also divided the Court in Facebook v. Duguid.

The most entertaining part of the opinion concerned, of all things, ceviche. This back-and-forth between Justices Sotomayor and Gorsuch was a refreshing break from this otherwise tedious term.

Justice Sotomayor offered this hypothetical about the Peruvian delicacy:

A restaurant advertises "50% off any meat, vegetable, or seafood dish, including ceviche, which is cooked." Say a customer orders ceviche, a Peruvian specialty of raw fish marinated in citrus juice. Would she expect it to be cooked? No. Would she expect to pay full price for it? Again, no. Under the reading recommended by the series-qualifier canon, however, the ceviche was a red herring. Even though the 50%-off sale specifically named ceviche (and no other dish), it costs full price because it is not cooked. That conclusion would make no sense to a reasonable customer. 

I visited Peru several years ago. I can attest that ceviche is delicious. Later, Justice Sotomayor returns to the ceviche example:

Consider again the example of a restaurant advertising "50% off any meat, vegetable, or seafood dish, including ceviche, which is cooked." On respondents' logic, because the restaurant technically could cook its ceviche, the only way to read the advertisement is that ceviche is full price unless the restaurant takes an unexpected culinary step.

That is wrong. The best reading of the advertisement is that ceviche is 50% off even if it is not cooked, just as the best reading of ISDA is that ANCs are Indian tribes even if they are not federally recognized.

Justice Gorsuch responds to the ceviche argument in a footnote:

To support its implausibility argument, the Court proposes a hypothetical advertisement for "'50% off any meat, vegetable, or seafood dish, including ceviche, which is cooked.'" Ante, at 20. The Court posits that any reasonable customer would expect a discount even on uncooked ceviche. It's a colorful example, but one far afield from Indian law and the technical statutory definitions before us. Even taken on its own terms, too, the example is a bit underdone. A reasonable customer might notice some tension in the advertisement, but there are many plausible takeaways. Maybe the restaurant uses heat to cook its ceviche—many chefs "lightly poach lobster, shrimp, octopus or mussels before using them in ceviche." See Cordle, No-Cook Dishes, St. Louis Post-Dispatch, July 17, 2013, p. L4. Maybe the restaurant meant to speak of ceviche as "cooked" in the sense of "fish . . . 'cooked' by marinating it in an acidic dressing" like lime juice. See Bittman, Ceviche Without Fear, N. Y. Times, Aug. 14, 2002, p. F3. Or maybe the restaurant simply listed every dish it makes, understanding some dishes would be excluded by the concluding "cooked" proviso. Even in the Court's own hypothetical it is not "implausible" to apply the modifier across the board.

Underdone indeed. We're still waiting to learn the ingredients of Justice Gorsuch's steak rub.