Supreme Court justices are rethinking the rules they use to decipher laws that have been recently invoked to undo progressive policies like the Biden administration’s vaccine-or-test mandate.
Returning to the bench for the first time in a month, the justices on Tuesday heard argument in a tribal gaming law dispute in Texas. But the court veered off for part of the session to address the role of interpretive canons, which are intended to guide judges in determining what a law means.
The issue has broad implications for how judges should review executive policy measures and the public perception following recent rulings that have rekindled progressive criticism that the 6-3 conservative-majority Supreme Court is disguising politics as judicial philosophy.
Such canons can swing rulings and are often controversial in blockbuster cases that break along traditional ideological lines, with the court’s liberal or conservative justices looking to different rules to decide the case.
The debate on Tuesday was kicked off by the Ysleta del Sur Tribe’s invocation of the so-called Indian canon, which says that whenever a statute involving American Indians is unclear, the scales should tip in favor of the tribe.
Justice Samuel Alito suggested that “textualists” like him—those who say the plain meaning of a statute should often be the sole basis of determining its meaning and who now make up a majority of the court—are uneasy with using tools and canons that are untethered to the text of the law they are interpreting.
Ysleta del Sur argues that any ambiguity in the term “prohibited” should be resolved in its favor under the Indian canon, which would allow it to engage in gaming activities it says are vital to its economy.
Justice Elena Kagan wondered whether the court should do away with all interpretive cannons, noting that even the leader of the textualist movement, Justice Antonin Scalia, admitted that there is some discretion in choosing which—often contradictory—canons to invoke.
Kagan specifically referenced the “major questions” canon, which the court turned to Jan. 13 to block the centerpiece of the Biden administration’s attempts to contain the pandemic by requiring vaccines or testing for millions of private sector workers. The court blocked the mandate from going into effect, saying the government went too far with the rules Congress had given federal agencies.
The major questions doctrine guards against overaggressive agencies seeking to take advantage of gaps in statutory language “by recognizing that Congress does not usually hide elephants in mouseholes,” Justice Neil Gorsuch explained in his concurring opinion on the vaccine mandate.
The doctrine has renewed criticism from progressives who say the current court is acting politically, rather than according to a principled judicial ideology.
Kagan noted that the court on Feb. 28 will consider a major environmental case over EPA authority to come up with new ways to regulate greenhouse gases or whether the Congress must be explicit when it intends to give agencies such broad authority.
The major questions doctrine is the focal point of the EPA dispute over power-plant emissions, and could tie the hands of the current and future presidents to tackle climate change.
Justice Stephen Breyer said these kinds of “substantive canons” at the heart of these cases are subject to the same kinds of criticisms lobbed by conservatives at the use of legislative history when interpreting congressional action—namely, that citing it is akin to looking over a crowd and picking out your friends.
Justice Brett Kavanaugh countered by suggesting that some substantive canons are on better historical footing than others, saying they generally fall into two buckets: those that apply when there is ambiguity in the statute and those requiring that the government speak with a clear voice in certain situations.
The latter has constitutional or quasi-constitutional underpinnings, Kavanaugh said, like the rule that criminal laws typically require a “guilty mind” or setting a high bar for waiving sovereign immunity.
The justices didn’t discuss which bucket the major questions canon falls into, but Gorsuch’s concurring opinion in the vaccine case tied it to other constitutional doctrines that police the separation of powers between the three branches of government.