Invasion of the Judicial Body Snatchers: Justice Sotomayor’s Strange New Alliances


Anyone who follows the Court closely will recognize that it has gone a bit topsy-turvy since Justice Scalia’s death – human sacrifice, dogs and cats living together, mass hysteria.  More specifically, the Court has produced several split decisions and a few other epic punts.  No one harbors the illusion that this is a “normal” term.

But perhaps the foremost sign that things are squirrely at the Court – and indeed, that the apocalypse is nigh and we are all residing in the juridical Thunderdome – is Justice Sotomayor’s emerging alliances in certain cases with the Court’s conservatives.  In four decisions since Scalia’s death, she has joined either Chief Justice Roberts or Justice Thomas in two-or-three-justice concurrences or dissents that are deeply uncharacteristic.  These cases are Bank Markazi v. Peterson (joining CJ Roberts’s dissent), Ocasio v. United States (dissenting, joined by CJ Roberts), Merrill Lynch, Pierce, Fenner, & Smith Inc. v. Manning (joining J Thomas’s concurrence), and Luna Torres v. Lynch (dissenting, joined by JJ Thomas/Breyer).    To put it in perspective:  last term, Justice Sotomayor disagreed with Chief Justice Roberts in fifty-two percent of non-unanimous cases.  Roberts disagreed with only Kagan at a higher rate.  And Sotomayor disagreed with Justice Thomas in eighty-four percent of non-unanimous cases (the highest disagreement ratio between any two justices).

If you had asked me before this stretch what kind of cases would produce these strange alliances, I’m not sure I could have come up with a coherent answer – but my answer would not have looked like these.  They are some of the oddest cases to produce these lineups I can think of.  Let’s take them in order.

Bank Markazi is a separation of powers case.  A group of citizens sued Bank Markazi, an Iranian bank, seeking to recover funds they were entitled as a result of Iranian terrorism.  Up against several good legal defenses, the plaintiffs petitioned Congress to pass laws barring the operation of those defenses, and Congress did so.  The Court blessed Congress’s action, but Chief Justice Roberts (joined by J Sotomayor) dissented.  He traced the origin of the separation of powers, the history of legislative interference with the judiciary in the Founding era, and extensively cited the founding documents.  After this highly originalist overview, the Chief concluded that Congress had interfered in the federal courts’ Article III authority.

Ocasio was a more rote criminal case, dealing with the statutory interpretation of federal extortion law.  Justice Alito, writing for the majority, held that a group of conspirators violated the statute by transferring money among themselves.  Justice Sotomayor (joined by CJ Roberts) dissented, arguing that conspirators who transfer money among themselves cannot violate a law requiring extortion of property “from another.”  Such a reading, the dissent held, is “not a natural or logical way to interpret the phrase ‘from another.’”  Sotomayor’s dissent examined the history and purpose of the conspiracy statute (and quite effectively rebukes the majority opinion).

Merrill Lynch is perhaps the weirdest of the four.  Justice Sotomayor joined Justice Thomas’s concurrence to a Kagan opinion on federal jurisdiction.  Kagan, for the Court, concluded that the jurisdictional provision of the Securities and Exchange Act should be analyzed using the same precedents and pathways that courts use to examine normal federal question jurisdiction under 28 U.S.C. § 1331.  Justice Thomas concurred but offered a different test – whether the complaint “alleges a claim that necessarily depends on a breach of a requirement created by the [Act].”  This is so, Thomas wrote, because the statute’s language that federal jurisdiction applies when a suit is “brought to enforce” rights under the statute is clear-cut.  Thomas refused to add the gloss that the Court added (essentially asking whether the federal component is “real and substantial”) because the text did not support it.  Justice Sotomayor was the only one who joined the concurrence.

Finally, Justice Sotomayor dissented from Justice Kagan’s immigration opinion in Luna Torres.  This is another barnburner – for starters, Justice Kagan consistently refers to those in the country who are not citizens as “aliens,” while Sotomayor pointedly refers to them as “noncitizens.” Luna Torres asked whether a noncitizen who violated a state arson statute – which was identical to a federal arson statute in every way except that it lacked a federal jurisdictional element – had violated a law “described in” the federal arson statute.  The Court said yes; Justices Sotomayor/Thomas/Breyer said no.  Sotomayor resorted to highly textual analysis, incorporating the dictionary definition of “described in” into her argument and ultimately arguing that because the statutes were not identical, the state statute was not “described in” the federal one.

The only common element to these decisions seems to be what non-academics would call “the BS test.”  In all of them, the Court’s decision seemed to require a certain suspension of basic linguistic principles or common sense, and Justice Sotomayor was simply unwilling to go along with those suspensions.  She was unwilling to pretend Congress’s action didn’t erode the Court’s power in Bank Markazi, unwilling to suspend a basic linguistic understanding of “extorting property ‘from another’” in Ocasio, unwilling to augment the plain language of the Securities and Exchange Act in Merrill Lynch, and unwilling to abandon a layman’s definition of “described in” in Luna Torres.

But that still doesn’t explain why she’s now forging these alliances.  It could be that Justice Scalia was such a caustic messenger for the principles embodied in these opinions – textualism and originalism – that only once he left has Justice Sotomayor been more willing to join these alliances.  It would not be the first time that Scalia alienated a potential ally.  Jeffrey Toobin, in The Nine, detailed how Scalia’s acerbic style put off Justice O’Connor, losing her vote on decisions where he potentially might have otherwise procured it.  Or, as Chief Justice Rehnquist put it, “Nino, you’re pissing off Sandra again.  Stop it!”  Toobin, at 151.  Scalia may have simply put such an unpleasant face on originalism and textualism in internal Court negotiations that Sotomayor did not attempt to forge alliances or seek across-the-ideological-split agreement on those grounds.

It also bears note that Sotomayor split twice from Kagan less than two months after Kagan shishkebabbed Sotomayor in Lockhart v. United States.  It was a relatively minor case, turning on a grammatical quirk in statutory interpretation, but Kagan’s dissent essentially went Man-on-Fire on Sotomayor’s reasoning, and was so brutal that it was likely embarrassing for Sotomayor.  I don’t think that the two are permanently on the outs, but end-of-term bruised egos may also be creating opportunities for realignment.

Probably most crucially, it’s simply a new Court without Scalia.  Mitch McConnell has made clear that until a majority of Americans vote for the same candidate he does, the Court will be operating at a number less than 9.  All justices have been adjusting to this new reality – Justice Thomas, for instance, took up the mantle of Second Amendment defense in oral argument at one of the first sittings after Scalia’s passing.  Voisine v. United States, Tr. of Oral Arg. at 35.  In this new and uncertain environment, everyone is still trying to count to 5.  Justice Sotomayor seems to have realized that she cannot accomplish her jurisprudential goals if the votes of CJ Roberts and JJ Alito and Thomas are off the table from the start of every negotiation. She is taking perhaps the boldest steps to forge alliances in a post-Scalia world.


Invasion of the Judicial Body Snatchers: Justice Sotomayor’s Strange New Alliances

Progressive Linguistics and Auer/Chevron Deference:  A Liberal Combo Move

 Note: I performed a brief pre-emption check for this post, but in the flurry of writing following the Fourth Circuit’s decision in G.G. ex rel. Grimm v. Gloucester County School Board, I have certainly missed many insightful articles.  If this post mirrors another author’s work, I apologize.

Several weeks ago, the Fourth Circuit Court of Appeals decided G.G. ex rel. Grimm v. Gloucester County Sch. Bd., No. 15-2056, 2016 WL 1567467 (4th Cir. Apr. 19, 2016), a case in which G.G., a transgender boy (a person born biologically female who identifies as male), sued and won the right to use male restroom facilities in G.G.’s public high school.  The case demonstrates a synergy between the progressive movement’s social and bureaucratic goals.  Specifically, this post argues that the left’s efforts to aggressively enforce new norms for language dovetail with its legal reliance on the regulatory state to implement change that cannot be effected legislatively.

G.G. v. Gloucester is, at its heart, an administrative law case that turns on the deference afforded to the Department of Education’s interpretation of language in Title IX of the Civil Rights Act and regulations promulgated thereunder.  Gloucester, at *5.  Under Auer v. Robbins, a seminal administrative law decision, an agency’s interpretation of its own regulation is afforded deference by federal courts when the regulation in question is ambiguousAuer, 519 U.S. 452, 461 (1997).  This deference in the face of linguistic ambiguity is a common feature of administrative law.  See Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (implementing two-step statutory analysis that asks first if text is ambiguous, and if so, defers to agency’s interpretation of that ambiguity).

In plain English, Auer and Chevron mean that the agency gets some leeway in interpreting language if, and only if, the language is ambiguous on the page.  The first step of the Fourth Circuit’s analysis, therefore, was asking whether the relevant legislation was unclear.  That legislation, Title IX, prohibits sex discrimination, but with some clear caveats.  The law “permits the provision of separate living facilities on the basis of sex: ‘nothing contained [in Title IX] shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.’”  Gloucester, at *4.  The Fourth Circuit asked, therefore, whether the phrase “sex” and “different sexes” were ambiguous.  That question mattered a great deal here, because the district court defined “sex” as “biological sex,” but the Department of Education mandates that “[w]hen a school elects to treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.”  Gloucester, at *4, *4 n.5.  In other words, not consistent with the student’s biological sex.

You can see the upshot:  this case hinges on whether “sex” is an ambiguous word.  If “sex” unambiguously means “biological sex,” then G.G.’s high school complied with Title IX when it provided bathrooms for its students that they could use according to their biological sex.  But if “sex” is ambiguous, the Department of Education’s transgender-friendly interpretation is afforded wide latitude, and the school must allow transgender students to use the bathroom of their identified sex or else violate Title IX.

The Fourth Circuit concluded that “sex” is an ambiguous term and afforded the Department’s interpretation controlling weight under AuerGloucester, at *8.  “Although the regulation may refer to males and females,” the court found, “it is silent as to how a school should determine whether a transgender individual is male or female . . . .”  This holding certainly seems to reflect the recent and broader social push to expand the definition of “sex” from a biological inquiry into a more consent-based, identity norm that is individually discretionary.  The recent push for linguistic norms that favor transgender people’s dignity created the ambiguity, where the word “sex” likely would not have been ambiguous two decades ago.

This linguistic maneuver is not applicable to just Gloucester.  The administrative state, answerable to the executive, gains significant power when it manages to move cases from Auer/Chevron step one (plain language analysis) to Auer/Chevron step two (agency interpretation in the face of ambiguous language).  Ambiguity in language, therefore, enhances the power of the federal bureaucracy.

This phenomenon is perfectly situated for the current position and agenda of the political left.  Positionally, the left is likely going to be cabined to regulatory rulemaking for implementing progressive change for the foreseeable future.  Unless Donald Trump absolutely goes down in flames, the GOP is likely to retain at least the House of Representatives because of its current districting.  And because of baked-in Electoral College advantages, the Democratic Party is likely to retain some advantage in presidential elections absent unforeseen realignment. See, e.g.Washington Post, Electoral College Favors Democrats.  The country is therefore likely to face multiple years where Congress is gridlocked with the President, and the only federal policy change is occurring at the bureaucratic level.

In terms of agenda, the left has been (either intentionally or serendipitously) honing its ability to enforce rapidly-shifting norms of language that leave previously-unambiguous words more susceptible to arguable ambiguity.  Though I think the “political correctness” phenomenon is overstated, it is hard to argue that language is a major front in the culture war.  See, e.g., New York Times Magazine, Caitlyn Jenner (describing efforts to correctly deploy gender pronouns for transgender individuals); Azhar Majeed, Defying the Constitution:  The Rise, Persistence, and Prevalence of Campus Speech Codes, 7 Geo. J.L. & Pub. Pol’y 481 (2009) (articulating conservative viewpoint of “Orwellian” campus speech codes).  Such phenomena are not unique to the realm of transgender politics.  Universities have, for example, tried to dispense with phrases like “melting pot,” arguing that the existence of the term as usually deployed unacceptably fosters the idea that America is a colorblind society in which anyone can succeed.  See Washington Post, Berkeley Speech CodesNor is speech manipulation exclusive to liberalism, see, e.g., The Atlantic, The Agony of Frank Lutz, but it seems to be currently wielded disproportionately by progressives.

Of course, the English language has been changing since its inception, and groups have always pushed to shed terminology associated with bitter or oppressive eras.  But the new linguistic battlefields are of outsize importance to the Auer/Chevron question.  Current linguistic conflicts focus not solely on minimizing the use of slurs or banishing words that are intrinsically loaded, but on marginalizing or altering previously-uncontroversial words that express disfavored concepts.  These fights also involve newer concepts of individualized consent in language; essentially, that language is not objectively applicable to wide groups of people, but rather, is to be individually determined by the recipient of language.  See, e.g., Carleton College Student Organizations, Gender Neutral Pronouns, (noting the need for all people to choose the pronouns they believe best apply to them).

These alterations may well be good, and certainly seem to bring a measure of comfort and dignity to those on whose behalf language is altered.  But as a matter of administrative law, these societal-linguistic changes are beginning to do demonstrable work in moving cases that would previously land in the Auer/Chevron step one category into the Auer/Chevron step two category.  Language is now under enough factional pressure that it is risky, as a matter of social politeness or legal interpretation, to afford many words the “objective” reading required to keep a case in Auer/Chevron step one.  Indeed, courts can hardly declare a statute or regulation to have plain meaning – and therefore exist beyond the reach of agency discretion – if the statute or regulation’s words properly mean something different to every governed person according to his or her individualized expectations.

If this linguistic-flux-as-instrument-of-change continues, courts will need to understand its full ramifications in evaluating administrative doctrines going forward.  Chevron and Auer already have their critics, both on and off the bench, but any semblance of regulatory curtailment contained in those opinions resides in step one.  Once an agency moves language into the step two category, few if any checks are left on the agency’s interpretation.  When intelligent lawyers dedicated to progressive change realize that step one can be attacked extrajudicially, they will not simply check that weapon at the doorstep.  If federal courts wish to retain their role as legitimate checks on the federal bureaucracy, they (and the deference doctrines they employ) will have to adapt just as quickly.

Update (5-16-2016):  Justice Thomas, dissenting from denial of certiorari in United Student Aid Funds, Inc. v. Bryana Bible, noted today that “[a]ny reader of this Court’s opinions should think that [Auer deference] is on its last gasp.”  No. 15-861, at *1 (Thomas, J., dissenting).


Progressive Linguistics and Auer/Chevron Deference:  A Liberal Combo Move