(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)
In my previous post, I noted a number of the considerations that the Supreme Court emphasized in its criminal statutory interpretation cases from the past term. In this post, I will highlight one recurring point of controversy, that is, whether the Court should try to maximize the effectiveness of statutes in achieving their overarching purposes.
Abramski, the firearms purchase case, provides a good illustration.
Abramski had purchased a handgun for his uncle, falsely indicating on a form that he (Abramski) was the “actual transferee/buyer.” A federal law criminalizes false statements “with respect to any fact material to the lawfulness of the sale” of a gun. Prosecuted under this law, Abramski argued that his false statement was not “material.” Part of his claim was that federal gun control laws are unconcerned with straw purchases like his: as long as the person standing at the counter exchanging money for a firearm can do so legally, the law does not care whether the purchaser is acting on his own or someone else’s behalf.
Justice Kagan, writing for a 5-4 majority, rejected this argument, observing that Abramski’s position would undermine much of the federal gun-control regime:
The overarching reason [for rejecting the argument] is that Abramski’s reading would undermine—indeed, for all important purposes,would virtually repeal—the gun law’s core provisions. As noted earlier, the statute establishes an elaborate system to verify a would-be gun purchaser’s identity and check on his background. It also requires that the information so gathered go into a dealer’s permanent records. The twin goals of this comprehensive scheme are to keep guns out of the hands of criminals and others who should not have them, and to assist law enforcement authorities in investigating serious crimes. And no part of that scheme would work if the statute turned a blind eye to straw purchases—if, in other words,the law addressed not the substance of a transaction, but only empty formalities.
Justice Scalia, writing for the four dissenters, objected to the majority’s basic approach to statutory interpretation:
The majority contends, however, that the Gun Control Act’s “principal purpose” of “curb[ing] crime by keeping firearms out of the hands of those not legally entitled to possess them” demands the conclusion that Abramski’s uncle was the “person” to whom the dealer “s[old]” the gun. But “no law pursues its purpose at all costs,” and the “textual limitations upon a law’s scope” are equally “a part of its ‘purpose.’” Rapanos v. United States, 547 U. S. 715, 752 (2006) (plurality opinion). The majority’s purpose-based arguments describe a statute Congress reasonably might have written, but not the statute it wrote.
. . .
. . . The only thing which can justify [the majority’s] leap is the false imperative to make the statute as effective as possible, rather than as effective as the language indicates Congress desired.
. . .
[P]erhaps Congress drew the line where it did [permitting straw purchases] because the Gun Control Act, like many contentious pieces of legislation, was a “compromise” among “highly interested parties attempting to pull the provisions in different directions.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 461 (2002); see Director, Office of Workers’ Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 135–136 (1995). Perhaps those whose votes were needed for passage of the statute wanted a lawful purchaser to be able to use an agent. A statute shaped by political tradeoffs in a controversial area may appear “imperfect” from some perspectives, but “our ability to imagine ways of redesigning the statute to advance one of Congress’ ends does not render it irrational.” Preseault v. ICC, 494 U. S. 1, 19 (1990). We must accept that Congress, balancing the conflicting demands of a divided citizenry, “‘wrote the statute it wrote’—meaning, a statute going so far and no further.” Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___ (2014) (slip op., at 11).
Kagan responded to Scalia in a footnote:
We simply recognize that a court should not interpret each word in a statute with blinders on, refusing to look at the word’s function within the broader statutory context. As we have previously put the point, a “provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988).
This same debate over interpretive methodology echoed in other decisions from the past term. For instance, in Castleman, the Court had to determine the scope of a federal prohibition on gun possession by anyone convicted of “a misdemeanor crime of domestic violence.” Writing for the majority, Justice Sotomayor reached beyond the particular circumstances of the case to decide broadly that a misdemeanor conviction for “offensive touching” in a domestic context would satisfy the statute and disqualify the toucher from possessing a firearm. Like Kagan in Abramski, Sotomayor emphasized that this broad reading of the statute would make it more effective in achieving its overarching ends (here, preventing lethal domestic violence). For instance, Sotomayor observed that a narrower reading would have rendered the statute “inoperative in many States at the time of its enactment.” Once again, Scalia (here concurring) objected to this approach: “there is no interpretive principle to the effect that statutes must be given their broadest possible application.”
There was an interesting flipside to this recurring debate: the Justices sometimes found themselves concerned about the possibility that a statute might be too effective, especially if this meant federal intrusion into areas of law enforcement that have traditionally been left to the states. Most dramatically, in Bond, the Court refused to interpret the Chemical Weapons Convention Implementation Act so broadly as to permit federal prosecution of routine poisonings. (See my post here.) Then, in Loughrin, there was a similar concern that the government’s broad reading of the federal bank fraud statute would convert much routine, low-level deceit into a federal offense. Although the Court upheld Loughrin’s conviction, it also went out of its way to identify a limitation on the statute’s scope that might mitigate the federalism difficulties highlighted by the defendant.
The Bond issues aside, the Court’s recent decisions illustrate a divide among the Justices over the relevance of “purposive” considerations in statutory interpretation — a divide that roughly corresponds to the liberal-conservative divide.
Justice Scalia’s opposition to purposive interpretation rests in part on a realism about the lawmaking process that is surely correct: there can be little doubt that many statutes are full of the sort of unprincipled compromises that are often necessary for a bill to become law. On the other hand, Scalia’s textualism is probably no more realistic that Kagan’s purposivism: much statutory language is surely drafted without attention to the nuances of semantics and grammar that textualists so love to explore. This is not to say that purposivism is superior to textualism, but merely that the contest between these two approaches must ultimately move beyond appeals to legislative intent.
Cross posted at Life Sentences Blog.