The Volokh Conspiracy

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Justice Kagan Double-Helixes Justices Gorsuch and Kavanaugh

Kagan: "Kavanaugh, J. (recognizing that the argument may be forfeited, but opining on it anyway)."


On Wednesday, the Supreme Court decided Helix Energy Solutions Group, Inc. v. Hewitt. The vote in Hewitt was 6-2. Justice Kagan wrote the majority opinion, joined by the Chief Justice and Justices Thomas, Sotomayor, Barrett, and Jackson. This is a heterodox majority opinion that split left and right, much like the heterodox Fifth Circuit en banc majority.

Justice Gorsuch voted to dismiss the case as improvidently granted, known in the lingo as a DIG. In Gorsuch's view, the Court granted review on one question, but after the cert grant, the Petitioner pivoted to focus on another question. Gorsuch also raised the question of whether the regulations were consistent with the statute.

Another reason counsels hesitation, too. Helix Energy does not just dispute the proper application of various regulations. It contends those regulations are inconsistent with and unsustainable under the terms of the statute on which they are purportedly based. While §541.601, §541.602, and §541.604 focus on an employee's salary, Helix Energy submits, the statute requires attention to the employee's duties. See Tr. of Oral Arg. 32–38, 46–47; Brief for Petitioners 41–44; Reply Brief for Petitioners 20–24; seegenerally 29 U. S. C. §213(a)(1). Understandably, the Court refuses to entertain this larger statutory argument because Helix Energy failed to raise it earlier in the litigation. Ante, at 7, n. 2. But the fact that Helix Energy forfeited such a foundational argument seems to me all the more reason to leave any question about §541.602 to another day. 

However, in Justice Gorsuch's view, the petitioner forfeited this issue, so it was not proper to resolve the question. Gorsuch seems to DIG a lot. Last term he would have DIG'd in Kemp v. United States and Shoop v. Twyford.

Justice Kagan replied that Gorsuch's DIG concern had merit, but found that the question resolved was a "necessary 'predicate'" to the question presented. Therefore, this case was appropriate to resolve on the merits.

3We appreciate JUSTICE GORSUCH's concern that the question we ask and answer is not quite the one Helix's petition for certiorari urged upon us. . . . Resolution of that §602(a) issue is a necessary "predicate to an intelligent resolution of the question presented." Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996). Indeed, Helix's counsel urged us to answer it—even assuming Helix would lose—rather than dismiss this case as improvidently granted. See Tr. of Oral Arg. 39–40 ("I would prefer that you just answer the question"—even if "adversely"—"because I don't think there's a basis for a DIG"). And our resolution of that predicate issue itself reveals the answer to Helix's initial formulation of the question presented.

What about the statutory argument? Kagan likewise found the issue was forfeited:

At argument in this Court, Helix suggested that the salary-basis component of the regulations is an impermissible extrapolation from the statutory exemption for workers "employed in a bona fide executive . . . capacity." 29 U. S. C. §213(a); see Tr. of Oral Arg. 33–37. But Helix did not raise that argument in the courts below.

So there was no need to decide the question here.

Then, there was Justice Kavanaugh. Let me ask you to make a prediction. What do you think Justice Kavanaugh did in this case? (A) found the issue was forfeited and let it go; (B) found the issue was forfeited and said the Court should resolve it in the appropriate case; (C) found the issue was forfeited but opined on it anyway. If you picked (C), you have been paying attention to Justice Kavanaugh's five years on the Court.

Here is the final paragraph of Kavanaugh's dissent:

One last point: Although the Court holds that Hewitt is entitled to overtime pay under the regulations, the regulations themselves may be inconsistent with the Fair Labor Standards Act. See, e.g., Brief for State of Mississippi et al. as Amici Curiae 7–10; Ante, at 1–2 (GORSUCH, J., dissenting). Recall that the Act provides that employees who work in a "bona fide executive . . . capacity" are not entitled to overtime pay. 29 U. S. C. §213(a)(1). The Act focuses on whether the employee performs executive duties, not how much an employee is paid or how an employee is paid. So it is questionable whether the Department's regulations—which look not only at an employee's duties but also at how much an employee is paid and how an employee is paid—will survive if and when the regulations are challenged as inconsistent with the Act. It is especially dubious for the regulations to focus on how an employee is paid (for example, by salary, wage, commission, or bonus) to determine whether the employee is a bona fide executive. An executive employee's duties (and perhaps his total compensation) may be relevant to assessing whether the employee is a bona fide executive. But I am hard- pressed to understand why it would matter for assessing executive status whether an employee is paid by salary, wage, commission, bonus, or some combination thereof. In any event, I would leave it to the Fifth Circuit on remand to determine whether Helix forfeited the statutory issue. But whether in Hewitt's case on remand or in another case, the statutory question remains open for future resolution in the lower courts and perhaps ultimately in this Court.

This is a classic Kavanaugh paragraph. Take an issue which the parties didn't actually present, signal strongly what you think (using words like "questionable," "dubious," and "hard-pressed"), and hope the lower courts follow the lead. This paragraph is in keeping with the Kavanaugh concurrences in Dobbs and Bruen. Again, there is nothing moderate or restrained about this approach. Kavanaugh has this fixation to reach out and touch questions that are not necessary to decide.

Justice Kagan dealt with this aspect of the dissent with a vicious parenthetical.

. . . Helix did not raise that argument in the courts below. Following our usual practice, we therefore decline to address its merits. See, e.g., Kingdomware Technologies, Inc. v. United States, 579 U. S. 162, 173 (2016); see post, at 2 (GORSUCH, J., dissenting) (agreeing that Helix "failed to raise" the argument, and also declining to express a view of its merits); but cf. post, at 4–5 (KAVANAUGH, J., dissenting) (recognizing that the argument may be forfeited, but opining on it anyway).

I think this parenthetical can be added to just about any Kavanaugh separate writing: (issue is irrelevant, but opining on it anyway).

Once again, Gorsuch practiced judicial minimalism. Kavanaugh practiced judicial maximalism. Justice Alito should have joined the bulk of the dissent, with the exception of the last paragraph. Let Kavanaugh stand alone on these frolics and detours.