Thomas vs. Sotomayor

A Supreme Court exchange illuminates judicial differences.


U.S. Supreme Court Justices taking a new group photo including Gorsuch, their most recent addition, at the Supreme Court building in Washington on June 1, 2017.
U.S. Supreme Court Justices taking a new group photo including Gorsuch, their most recent addition, at the Supreme Court building in Washington on June 1, 2017. PHOTO: JONATHAN ERNST/REUTERS

A unanimous Supreme Court struck a blow for the plain reading of the law on Wednesday, but a pair of dueling concurrences deserve broader attention for what they say about the different methods of legal interpretation on the High Court today.

Justice Ruth Bader Ginsburg wrote for the full Court in rebuking the Securities and Exchange Commission for reinterpreting the Dodd-Frank Act despite the clear text of the statute (Digital Realty Trust v. Somers ). Paul Somers sued Digital Realty Trust , claiming protection as a whistleblower for filing a complaint about a securities violation. He might have sued under the 2002 Sarbanes-Oxley law that protects whistleblowers if they file complaints with the Labor Department within 180 days.

But instead he sued in federal court under Dodd-Frank, which lets whistleblowers who are retaliated against sue and receive double back pay. The problem is that Dodd-Frank defines a whistleblower as someone who provides information about a securities violation to the SEC. Mr. Somers didn’t do that, but the SEC claimed that didn’t matter because Congress intended the law to protect people like Mr. Somers no matter the law’s text. 

Citing precedent, Justice Ginsburg rightly wrote that “‘When a statute includes an explicit definition, we must follow that definition,’ even if it varies from a term’s ordinary meaning. This principle resolves the question before us.” She then went on an extended and needless tour of congressional intent that may invite legal mischief down the road.

This drew a highly entertaining concurrence from Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, that agreed with the judgment but rapped Justice Ginsburg’s opinion for attempting to find the “purpose” of a statute primarily in a single “Senate Report.”

Justice Thomas pointed out that the Court is “‘governed by what Congress enacted rather than by what it intended.’” And to prove his point he included a footnote with a hilarious colloquy between former Senators Bill Armstrong and Bob Dole about a Finance Committee report. The exchange is a political “Who’s on First?”

Justice Thomas’s concurrence set off Justice Sonia Sotomayor, the Court’s most left-leaning voice, who wrote her own concurrence defending the Court’s reliance on legislative history, including Senate reports.

It’s a telling exchange. Justice Sotomayor wants the judicial running room of reports and history through which she can drive her political preferences. Justice Thomas wants the Court to follow what the law actually says.

Appeared in the February 22, 2018, print edition.

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