06 November 2018

Notorious RBG: Textualist

I win my internal over/under bet: I predicted to myself that the first opinion from an argued case this term would be before Thanksgiving. And this morning's opinion in Mt. Lemmon Fire is well inside the "under." (Yes, this is my sarcastic homage to last Term's gambling-regulation decision; get over it.)

In a unanimous (8–0, Kavanaugh recused, because it was argued before he was confirmed and seated) decision this morning, Justice Ginsburg took an archly textualist approach to confirming — as her opinion notes, not actually expanding — that the Age Discrimination in Employment Act reaches all state-government activities regardless of the number of employees. Private actors are exempt from ADEA requirements unless they have twenty employees,1 and a lot of smaller state units also have fewer than twenty employees — like the Mt. Lemmon Fire District.

Employing a strictly textualist approach, Justice Ginsburg points out that the statute is written otherwise.

For several reasons, we conclude that the words “also means” in § 630(b) add new categories of employers to the ADEA’s reach. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. As the Ninth Circuit explained, “‘also’ is a term of enhancement; it means ‘in addition; besides’ and ‘likewise; too.’” [Opinion below,] 859 F.3d at 1171 (quoting Webster’s New Collegiate Dictionary 34 (1973)). Indeed, reading “also” additively to create a separate category of “employer” seemed to this Court altogether fitting in EEOC v. Wyoming, 460 U.S. 226 (1983). There, we held that applying the ADEA to state and local governments does not encroach on States’ sovereignty or Tenth Amendment immunity. Id., at 240–42. In the course of so holding, we described the 1974 ADEA amendment as “extend[ing] the substantive prohibitions of the Act to employers having at least 20 workers [as opposed to 25 in the original version], and to the Federal and State Governments.” Id., at 233 (emphasis added). In this regard, we note, it is undisputed that the ADEA covers Federal Government entities, which our opinion in Wyoming grouped with state entities, regardless of the number of workers they employ. 29 U.S.C. § 633a.

Instructive as well, the phrase “also means” occurs dozens of times throughout the U.S. Code, typically carrying an additive meaning. For example, 12 U.S.C. § 1715z–1(i)(4), provides:

“[T]he term ‘elderly families’ means families which consist of two or more persons the head of which (or his spouse) is sixty-two years of age or over or is handicapped. Such term also means a single person who is sixty-two years of age or over or is handicapped.”

“[A] single person” plainly adds to, rather than clarifies, the preceding statutory delineation, “two or more persons.” Just so with States and their political subdivisions in the ADEA’s definition of “employer.” Notably, in § 1715z–1(i)(4), Congress repeated the “sixty-two years of age or over or is handicapped” qualifier to render it applicable to “a single person.” In the ADEA, by contrast, Congress did not repeat the “twenty or more employees” qualifier when referencing state and local government entities. This Court is not at liberty to insert the absent qualifier.

Mt. Lemmon Fire Dist. v. Guido, No. [20]17–587 (PDF), slip op. at 4–5 (record citations omitted, typography corrected). Plus, Mt. Lemmon Fire is an ardent affirmance of the Ninth Circuit, which now has a 100% affirmance record for this Term. <SARCASM> But that's not a partisan issue. Not one little bit. </SARCASM>

This is a sensible opinion. It also points out a critical problem with legislation: Ambiguous writing. There was no good reason except the tradition of not using typographical and other clarifying devices to leave this in a narrative paragraph that would have rightly been criticized as containing multiple subjects by your ninth-grade English teacher. Consider this alternative — the form that should always be chosen when creating definitions (I'm looking at you, 17 U.S.C. § 101 and your run-on definition of works made for hire):

The term ‘employer’ means:
(1) a person engaged in an industry affecting commerce who has twenty or more employees, or any agent of such a person; or
(2) a State or political subdivision of a State.

That puts all of the related material inside each subdivision, independently and clearly. So, Congress, if you insist on writing badly, litigation results. Expensive litigation.

  1. This leaves for another day the reach of the ADEA into the modern "gig economy" in which such a high proportion of what would have been understood as "employees" at the time it was passed is now treated as "independent contractors" and "freelancers" and "independent service associates" and anything but employees. I not-all-that-respectfully suggest that Congress has had what passes for its head up its rectal orifice for at least two decades on this issue, not to mention taxation, eligibility for work for hire, collective bargaining, and a plethora of other seemingly unrelated things that depends upon bright-line "employment" status. I won't speculate on this at all, because the record is damned near iron-clad that this arises in large part due to capture of Congress by anti-union forces starting in the 1980s and gets even more intellectually dishonest (and frequently downright corrupt) from there.