A Republic, If You Can Keep It

by Neil Gorsuch

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  IF AT THIS POINT you still harbor doubts about textualism, I’d ask you to consider the old truism that you can’t beat something with nothing. For if you’re inclined to abandon textualism, it falls to you to offer the judge something else in return. And when you try, I wonder if you might just find yourself wishing you hadn’t started down that road in the first place. Take two of the leading contenders we’ve already encountered: “purposivism” and “consequentialism.” While views diverge within these schools of thought, I think we can safely summarize their basics this way.

  Purposivists seek to give primacy to the perceived spirit of a statute—to further its primary purpose—even at the expense of the letter of the law. What evil was this statute aimed at? The proper interpretation of the statute, purposivists say, should seek to eradicate that evil. In construing a statute, purposivists sometimes hypothesize a reasonable legislator and ask what he would have wanted it to mean if he had faced the facts at hand. Perhaps an especially defining characteristic of purposivist theories is their reliance on legislative history—the committee reports, floor statements, and other papers Congress produces as it considers a bill—all in an effort to discover the hidden intention lurking behind the law. Sometimes, too, purposivists seek guidance about a statute’s purpose from administrative agencies charged with superintending the law at issue.

  Similarly but distinctly, consequentialists believe that judges should interpret legal texts to produce the best outcome for society. Some seek to maximize overall social welfare; others to protect favored persons or interests; still others to produce the equitable result in the case at hand. But whatever their particular stripe, consequentialists differ from purposivists in that they seek to select the outcome calculated to produce optimal policy results along some metric regardless what those in Congress might have intended.

  As I see it, though, purposivism and consequentialism quickly begin to run into problems when measured against our constitutional benchmarks. They take us dangerously far from interpreting the text and toward legislating a new one, encouraging the judge to adopt a meaning that furthers some purpose or social policy outside the statute’s metes and bounds. After all, it’s only when these theories invite us to depart from the statutory text that they do any real work. In issuing this invitation, these theories also begin to tear at the fabric of the separation of powers. On their account, judges don’t just honor what’s survived the constitutionally compelled legislative process. They seek to implement some other values that haven’t survived (and often probably couldn’t survive) that process. Legislating limits on liberty no longer remains a deliberately difficult business—or an open and public one. You no longer have to persuade 535 members of Congress and the president. You no longer have to engage all of society in a compromise. You only need to engage with one opponent (or a relative handful) in a sterile brief writing exercise directed to a few judges. And often lost in the process of judicial efforts to rationalize the law more perfectly are the compromise bargains that are the hallmark virtues of the legislative process.

  These theories also sit uneasily with the idea of an insulated federal judiciary. If judges are allowed to revise the terms of otherwise entirely constitutional legislation based on extratextual policy considerations, why are they unelected and endowed with life tenure? In Britain, members of the House of Lords served as appellate judges and could participate in the lawmaking process too. Our Constitution did not adopt this familiar structure but expressly rejected it by reserving all federal lawmaking powers to Congress and establishing an independent judiciary. That difference in design implies a difference in function: a judiciary that must “be bound down by strict rules” and neutral interpretive principles and one that must leave the business of making social policy judgments to Congress.

  Purposivism and consequentialism seem to me equally at odds with the rule of law values the Constitution’s structure seeks to serve. How are the people to know in advance what atextual purpose a purposivist judge might ascribe to a statute? Or which portions of the hidden legislative history behind the law’s text a judge might find probative? Let alone know what rule a consequentialist judge might think best for society? And what’s the point of writing down laws anyway if they are but jumping-off points for the judicial imagination? Purposivist and consequentialist theories, too, mean that judges may constantly update statutes in light of a changing world in order to fulfill an unexpressed congressional purpose or to ensure a rule best for society. So not only is meaning not limited to the text, it’s never fixed either, always shifting shape. What’s left of fair notice then?

  I worry, too, what these theories do to our commitment to equality. If a statute’s meaning isn’t determined by value-neutral rules seeking to enforce its written terms, who stands to benefit? Despite some popular belief, judges are only human. The more leeway a judge is given, the more likely the judge will engage, consciously or not, in motivated reasoning or bias in reaching a result. And it should come as little surprise if this bias will often harm minorities and disfavored groups, given that judges are, by and large, drawn from the majority or more powerful groups in society. The increase in flexibility gained by these theories comes with increased risks to equality. So if you think you might want judges to enact into law hidden legislative intentions or social policy, I ask you this. What happens when they come for you? Yes, if you are popular or powerful, maybe you will have them on your side. But what if you are neither of those things?

  After years of facing strong challenges along just these lines, purposivism and consequentialism have recently seen some scholarly efforts to stem their retreat. For example, Judge Robert Katzmann and my friend Chris Mammen have thoughtfully sought to rehabilitate purposivism in their books Judging Statutes and Using Legislative History in American Statutory Interpretation. They contend that limited uses of legislative history can help in interpreting a statute, and they point to committee reports as particularly reliable sources of information about Congress’s intended meaning. Committee reports generally accompany bills presented to Congress and, as Judge Katzmann puts it, provide members of Congress with information about “a bill’s context, purposes, policy implications, and details.”

  But, respectfully, I do not think that these arguments answer the most fundamental objections we’ve already encountered. Like the fact that only a bill’s text survives the process our supreme law prescribes for making laws; that judges are vested with the authority to enforce that which is written in the law, not that which isn’t; and that doing anything else but discerning the fair meaning of the text cannot be easily squared with our insulated federal judiciary. And even taking the argument on its own terms, I can’t help but wonder whether it paints a rather rosy picture of committee reports. Consider again Judge Kethledge, who has described his experience as a Senate staffer drafting legislative history. To him, the job was sort of “like being a teenager at home while your parents are away for the weekend: there was no supervision. I was able to write more or less what I pleased….[M]ost members of Congress…have no idea at all about what is in the legislative history for a particular bill.” A famous colloquy involving my old boss and home state senator, Bill Armstrong of Colorado (I interned for him as a young man), and Senator Bob Dole illustrates the point even when it comes to the supposedly reliable committee report:

  MR. ARMSTRONG: Mr. President, will the Senator tell me whether or not he wrote the committee report?

  MR. DOLE: Did I write the committee report?

  MR. ARMSTRONG: Yes.

  MR. DOLE: No; the Senator from Kansas did not write the committee report.

  MR. ARMSTRONG: Did any Senator write the committee report?

  MR. DOLE: I have to check.

  MR. ARMSTRONG: Does the Senator know of any Senator who wrote the committee report?

  MR. DOLE: I might be able to
identify one, but I would have to search. I was here all during the time it was written, I might say, and worked carefully with the staff as they worked….

  MR. ARMSTRONG: Mr. President, has the Senator from Kansas, the chairman of the Finance Committee, read the committee report in its entirety?

  MR. DOLE: I am working on it. It is not a bestseller, but I am working on it.

  MR. ARMSTRONG: Mr. President, did members of the Finance Committee vote on the committee report?

  MR. DOLE: No.

  MR. ARMSTRONG: …The report itself is not considered by the Committee on Finance. It was not subject to amendment by the Committee on Finance. It is not subject to amendment now by the Senate….If there were matter within this report which was disagreed to by the Senator from Colorado or even by a majority of all Senators, there would be no way for us to change the report. I could not offer an amendment tonight to amend the committee report….[L]et me just make the point that this is not the law, it was not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.

  I think my old boss had it right. He might have added that legislative history can also suffer from two more paradoxical problems. The more it’s used, the more unreliable it’s likely to become and the less incentive legislators will have to legislate. After all, canny politicians will have every reason to try to achieve their lawmaking dreams through ever more enterprising uses of legislative history and have even less incentive to attend to the much harder job of pushing their ideas through the full legislative process.

  My concerns with purposivism and consequentialism parallel those expressed by two men who preceded me in the seat on the Court I now occupy. In their pre-judicial political lives, they couldn’t have been more different. Before their appointments to the Court, one served as Franklin Delano Roosevelt’s attorney general; the other worked in Richard Nixon’s Justice Department. But when it came to the judge’s job of interpreting statutes, they were of one mind. Justice Jackson explained that “[w]hen we decide…what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history should have made on them. Never having been a Congressman, I am handicapped in that weird endeavor. That process seems to me not interpretation of a statute but creation of a statute.” Decades later, Justice Scalia echoed the point when he said that “[w]hen you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant…your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean.”

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  AT THIS POINT, it might help to make the comparison between our competing theories more concrete. We’ve already seen how they played out in the Tenth Circuit in Games-Perez. Now let’s consider two cases recently decided by the Supreme Court. During my first full term on the Court, we heard Digital Realty Trust v. Somers, a case about the scope of the Dodd-Frank Act’s whistleblower protections. In the Dodd-Frank Act, Congress protected “whistleblower[s]” from retaliation by their employers. But in that particular statute Congress defined the term “whistleblower[s]” to mean those who report lawbreaking to the Securities and Exchange Commission. The plaintiff in the case before us didn’t report his complaint to the SEC, only to his boss. Later, the boss allegedly retaliated against him. The plaintiff sought whistleblower protections under the Act, arguing the law’s purpose is (or should be) to maximize whistleblower reports and protect those who report questionable activity. The Ninth Circuit agreed with him.

  My Court unanimously reversed. We did so for the very sort of reasons I’ve outlined. Extending the scope of protected whistleblowers beyond those Congress chose to protect might be a great policy idea and no doubt it would seem to take a purpose latent in the statute to its logical end. But it also would have required the Court to upset a congressional compromise. With the passage of time and tumult of the legislative process, it might be hard to know why Congress chose to go as far as it did but no further. But we do know that the legislative process isn’t about pursuing an idea to the nth degree and the compromise represented in the statute was the only one that managed to run the legislative gauntlet and become law.

  A similar story unfolded in Wisconsin Central v. United States. There, we confronted the Railroad Retirement Tax Act of 1937. The statute allows the government to tax railroad employees’ “money” income. The government argued that this provision permitted it to tax the stock options an employee receives from his employer. As a matter of ordinary usage, of course, the term “money” meant then (as it does now) “a medium of exchange.” And pretty obviously, “stock” isn’t a medium of exchange; after all, no one buys groceries or pays rent in stock. Of course, stock can be converted into money. But then again, so can baseball cards. The truth is, most anything can be converted into money. Yet no one would seriously suggest that everything is money.

  Maybe so, the government responded. But, it argued, there are strong purposivist and consequentialist reasons for eliding the difference between money and things convertible into money. If the statute’s purpose was to tax money income, it said, then we should follow that thought to its logical end and allow other things easily convertible into money to be taxable too. Distinguishing between monetary and nonmonetary income might, as well, yield a suboptimal tax policy by encouraging companies to award more remuneration in stock and less in money, leaving the federal fisc to suffer.

  The Court rejected the government’s arguments. It explained that the judicial power doesn’t include a power to steer tax policy or pursue every good idea found in legislation to its logical conclusion or update statutes we think outdated. Nor is it a power to flatten out legislative compromises found in one area of the law but not another. That Congress chose to tax nonmonetary income elsewhere in the tax code showed that it knew very well how to do so if it wished. So we invoked the familiar textualist canon of interpretation that the expression of an idea in one place means its absence in another must be given effect. The fact that Congress made different choices in different statutes, we said, deserved respect, not a rewrite.

  Notice the strong temptation judges face in both cases to revise the statute. To bend the statutory terms to reach a short-term policy victory for a popular whistleblower or against an unpopular tax-avoiding corporate shareholder. To feel like they’ve “made a difference.” Because textualism is value-neutral, it hands out victories based on the strength of consistency with a statutory text, not passing popularity. So, yes, one day textualism means the criminal defendant should win and the next day a corporate railroad shareholder must. Judges may not like every policy outcome they reach. But if they did, we should think less of them.

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  IN THE END, TEXTUALISM is about ensuring that our written law is our actual law. There’s no doubt that inventing a new law instead of applying the written one can be tempting. Often enough, a good judge will look at a statute and immediately know three things: One, the law is telling me to do something really stupid; two, the law is perfectly constitutional; and, three, if I follow the stupid-but-constitutional law, everyone who’s not a lawyer is going to think I am stupid too. But despite temptations like these, textualism has come to dominate the interpretation of statutes today because so many inside and outside the legal profession have come to appreciate that something more important is at stake. People have come to respect that lawmaking belongs to legislators; that judges should seek to act by neutral principle; that people deserve to know in advance the laws that govern them. And that everyone—whether it’s today’s hero or tomorrow’s villain—deserves the protections of the written law.

  United States v. Carloss

 
The next four cases illustrate originalism and textualism in action. I’ve picked two from each category. The first case, United States v. Carloss, belies the old objection that originalism will leave rights underprotected. It’s a case about a type of government search called the “knock and talk.” Officers approach a home and knock on the front door, hoping for a receptive welcome so they might enter by consent and without the need for a warrant. But the homeowners in this case had several No Trespassing signs lining the path to their front door. Should that have barred the officers’ approach, at least without a warrant, under the Fourth Amendment? My colleagues on the Tenth Circuit took the view that government officials were free to ignore the warnings and walk up the homeowner’s path and knock on the front door without a warrant. I dissented. To me, this case is what originalism is all about: ensuring that the liberties the people enjoyed at the founding remain no less secure today.

  The “knock and talk” has won a prominent place in today’s legal lexicon. The term is used to describe situations in which police officers approach a home, knock at the front door, and seek to engage the homeowner in conversation and win permission to search inside. Because everything happens with the homeowner’s consent, the theory goes, a warrant isn’t needed. After all, the Fourth Amendment prohibits “unreasonable” searches, and consensual searches are rarely that. No doubt for just this reason law enforcement has found the knock and talk an increasingly attractive investigative tool and published cases approving knock and talks have grown legion. But in the constant competition between constable and quarry, officers sometimes use knock and talks in ways that test the boundaries of the consent on which they depend. So, for example, courts have found that a homeowner’s consent isn’t freely given when officers appear with a display of force designed to overbear. Courts have found consent lacking and a constitutional violation, too, when officers mislead homeowners into thinking they have no choice but to cooperate.