The Volokh Conspiracy

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Textualism Monday

Four decisions that turn on the meaning of text.


On Monday, the Supreme Court handed down five decisions, four of which focused on statutory interpretation.

First, Justice Sotomayor wrote the majority opinion in Johnson v. Arteaga-Martinez. She emphatically rejected the Third Circuit's interpretation of Section 1231(a)(6):

The question presented is whether §1231(a)(6) requires bond hearings before immigration judges after six months of detention in which the Government bears the burden of proving by clear and convincing evidence that a noncitizen poses a flight risk or a danger to the community. Section 1231(a)(6) provides that certain noncitizens who have been ordered removed "may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision." This text, which does not address or "even hin[t]" at the requirements imposed below, directs that we answer this question in the negative. . . Here, there is no plausible construction of the text of §1231(a)(6) that requires the Government to provide bond hearings before immigration judges after six months of detention, with the Government bearing the burden of proving by clear and convincing evidence that a detained noncitizen poses a flight risk or a danger to the community.

Second, Justice Alito wrote the majority opinion in Garland v. Aleman GonzalezThis opinion also interpreted Section 1231(a)(6), and emphatically rejected the Ninth Circuit's interpretation. Here, Alito relied on "ordinary meaning."

With one exception that we will discuss momentarily, the critical language in this provision strips lower courts of "jurisdiction or authority" to "enjoin or restrain the operation of " the relevant statutory provisions. The ordinary meaning of these terms bars the class-wide relief awarded by the two District Courts.

Justice Sotomayor's dissent in Gonzalez countered with "plain meaning":

The essence of statutory interpretation is to review the plain meaning of a provision in its context. The Court's analysis, by violating several interpretive principles, ultimately fails in that endeavor. I respectfully dissent.

Third, Justice Thomas wrote the majority opinion in Kemp v. United States. He distinguished between "ordinary meaning" and "legal meaning" in FRCP 60(c):

The ordinary meaning of the term "mistake" in Rule 60(b)(1) includes a judge's legal errors. When the Rule was adopted in 1938 and revised in 1946, the word "mistake" applied to any "misconception," "misunderstanding,"or "fault in opinion or judgment." Webster's New International Dictionary 1383 (1914) (Webster's); see also Funk & Wagnalls New Standard Dictionary of the English Language 1588 (1944) (Funk & Wagnalls) (defining "mistake" as an "error in action, judgment, or perceptions," including, e.g., "a mistake in calculation"). In ordinary usage, then, a "mistake" was not limited only to factual "misconception[s]"or "misunderstanding[s]," or to mistakes by non-judicial actors. Webster's 1383. Likewise, in its legal usage, "mistake" included errors "of law or fact." Black's Law Dictionary 1195 (3d ed. 1933) (Black's). Thus, regardless whether"mistake" in Rule 60(b)(1) carries its ordinary meaning or legal meaning, it includes a judge's mistakes of law.

Fourth, Justice Barrett wrote the majority opinion in ZF Automotive U. S., Inc. v. Luxshare, Ltd. This case turned on the meaning of the phrase "foreign or international tribunal" in 28 U. S. C. §1782(a). It is a thoroughly textualist opinion.

So a §1782 "tribunal" need not be a formal "court," and the broad meaning of "tribunal" does not itself exclude private adjudicatory bodies.1 If we had nothing but this single word to go on, there would be a good case for including private arbitral panels.

This is where context comes in. "Tribunal" does not stand alone—it belongs to the phrase "foreign or international tribunal." And attached to these modifiers, "tribunal" is best understood as an adjudicative body that exercises governmental authority.2 Cf. FCC v. AT&T Inc., 562 U. S. 397, 406 (2011) ("[T]wo words together may assume a more particular meaning than those words in isolation").

My colleague James Phillips co-authored a corpus linguistics analysis of "foreign or international tribunal" that reached the same result as did the Court.

Four textualism opinions. None cited Bostock, which seems to have already passed its expiration date. I'll turn to the fifth case, and Justice Gorsuch in another post.