The front-runners for the Supreme Court won’t bring progressive economic credentials. If Congress chooses to limit corporatism, we will need Justices willing to enforce those new rules. Justice Stevens has a distinguished record of recognizing the claims of average citizens in the struggle against corporate interests.

If there were a liberal in the Senate who wanted to poke into this issue, I’d suggest asking about statutory construction. This apparently boring topic would enable the Senator to find out whether the nominee has a favorable attitude to Congress’s efforts to control runaway capitalism.

When I was in law school, in the early 70s, there was little emphasis on statutory construction, but there was a guiding principle: statutes should be applied to achieve the effect the legislature wanted. Antonin Scalia hates this idea and invented his own, stated here by Clarence Thomas:

… in interpreting a statute, a court should always turn first to one cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then this first canon is also the last: “judicial inquiry is complete.”

Conn. Nat’l Bank V. Germain, 503 U.S. 249 (1992) (citations omitted). This principle has so overtaken the rules I learned that we get the following:

The plain meaning of legislation should be conclusive, except in the “rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” In such cases, the intention of the drafters, rather than the strict language, controls.

United States V. Ron Pair Enterprises, Inc., 489 U.S. 235 (1989)

In other words, the drafter may have intended a specific result, and everyone knows it, but too bad, should have used some other words, because we figured out some other meanings for the words chosen.

This kind of interpretation led to decisions like the Shank case. The Wal-Mart health plan paid for the medical expenses of a Ms. Shank after she was seriously hurt in a crash. She sued the trucking company and settled for enough to give her what quality of life she had left. Wal-Mart sued to get the settlement back from her, and won. This result, which is undoubtedly correct as a matter of law, derives from a Supreme Court decision, in which Justice Scalia wrote:

We have observed repeatedly that ERISA is a ” `comprehensive and reticulated statute,’ the product of a decade of congressional study of the Nation’s private employee benefit system.” We have therefore been especially “reluctant to tamper with [the] enforcement scheme” embodied in the statute by extending remedies not specifically authorized by its text. Indeed, we have noted that ERISA’s “carefully crafted and detailed enforcement scheme provides `strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.’ “

Great-West Life & Annuity Insurance Company v. Knudson, 34 U.S. 204 (2002) (citations omitted):

This is just wrong-headed. The civil enforcement scheme of ERISA is notoriously incomplete. It appears certain that Congress intended to use the enforcement rules of the general law of trusts, but the statutory construction rules of Antonin Scalia and the rigidity of the application of those rules, means that ERISA has become a weapon wielded by business interests to screw employees, pension holders, holders of 401(k)s and other retirement plans, the intended beneficiaries of its provisions. Here is Justice Stevens, dissenting (citations omitted):

Not only is an inclusive reading of §502(a)(3) consonant with the text of the statute, but it accomplishes Congress’ goal of providing a federal remedy for violations of the terms of plans governed by ERISA. Contrary to the Court’s current reluctance to conclude that wrongs should be remedied, I believe that the historic presumption favoring the provision of remedies for violations of federal rights should inform our construction of the remedial provisions of federal statutes. It is difficult for me to understand why Congress would not have wanted to provide recourse in federal court for the plan violation disclosed by the record in this case. It is thus unsurprising that the Court’s opinion contains no discussion of why Congress would have intended its reading of §502(a)(3) and the resulting denial of a federal remedy in this case. Absent such discussion, the Court’s opinion is remarkably unpersuasive.

This same principle is at work in the recent flair-up over the health care reform statute, where insurance companies found a way to interpret the language which enabled them to refuse insurance to sick kids, when everyone knows that Congress intended to prevent that.

Some thoughtful Senator should ask the nominee to discuss statutory construction. Everyone will agree that statutes should be enforced to carry out the intent of Congress. Should courts be limited to the specific words chosen, and be guided by slavish and callous enforcement of the dictums of Sir Edward Coke and the antiquated definitions of Black’s Law Dictionary? Or should courts work with the remedial purposes of the law, and apply statutes in accordance with those purposes?
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General footnote: The discussion of the cases in this post is limited to statutory construction. The post is already long, and an adequate discussion of the facts and results would have tripled its length.