Justice Kagan's dissent in Yates v. United States is a more-or-less straightforward application of plain-meaning textualism to the federal evidence-tampering statutes, 18 U. S. C. §1519, which prohibits tampering with “any record, document, or tangible object” in an attempt to obstruct a federal investigation. The core of Justice Kagan's argument is that fish are "tangible objects."
As a matter of literal meaning (or, to get precise, conventional semantic meaning) this conclusion is very straightforward, fish are objects (because every physical thing is an object) and fish are tangible, because you can touch them (unlike information in electronic form). Here is the way that Justice Kagan made the argument:
While the plurality starts its analysis with §1519’s heading, see ante, at 10 (“We note first §1519’s caption”), I would begin with §1519’s text. When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning. See, e.g., Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U. S. ___, ___ (2011) (slip op., at 5). As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” Ante, at 7 (punctuation and citation omitted). A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as no one here disputes, covers fish (including too-small red grouper).
Another plain meaning textualist argument is before the court this term. In King v. Burwell, the Supreme Court will address the question whether the language of 26 U.S.C. § 36B—which limits federal subsidies to health-insurance exchanges “established by the State under section 1311”–authorizes subsidies to exchanges established by the Department of Health and Human Services.
And superficially, Justice Kagan's reasoning in Yates suggests that the answer to the question is "no." The Department of Health and Human Services is not a State. Alabama is a state, Kentucky is a state, and California is a state. But neither the federal government nor the departments thereof constitute a state. Viola!
So why would Justice Kagan, clearly among the most canny and intelligent jurists ever to serve as a Justice of the Supreme Court, take a position that would seem to undermine the Obama administration's litigation position in King v. Burwell. If asked to bet now on how Kagan will vote, I think there would be very few takers for a bet that she will author or join an opinion that holds that the subsidies for federal exchanges are not authorized by the statute.
So what is Kagan up to? Here is one clue. A group of law professors, including William Eskridge, considered by many to be the leading academic expert on statutory interpretation, are the amici on a brief that argues that the plain meaning of the statute supports the administration position. Here is the way the brief summarizes the argument:
But this is not, as Petitioners suggest, a case about textualism vs. purposivism. It is a case about good textual analysis vs. bad textual analysis. Textualism does not require courts to read statutory provisions in a vacuum. To the contrary, it is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation marks omitted). By focusing exclusively on Section 36B’s seven words in isolation, Petitioners violate textualism’s core tenets and adopt an interpretation that would nullify the Act as a whole.
And does Kagan have anything to say about the role of context in Yates. Well, it turns out that she does:
That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes. We do not “construe the meaning of statutory terms in a vacuum.” Tyler v. Cain, 533 U. S. 656, 662 (2001). Rather, we interpret particular words “in their context and with a view to their place in the overall statutory scheme.”
And here is the key sentence:
And sometimes that means, as the plurality says, that the dictionary definition of a disputed term cannot control.
And now back to the Eskridge brief:
But textualism is not hyperliteralism, and textualists do not read the words of a statute in a vacuum. To the contrary, “reasonable statutory interpretation must account for both ‘the specific context in which . . . language is used’ and ‘the broader context of the statute as a whole.’”
And here is another passage from the brief:
[T]extualists freely acknowledge that, “[i]n textual interpretation, context is everything.” Scalia, A MATTER OF INTERPRETATION 37 (emphasis added). “Textualism is not literalism. Not even the most committed textualist would claim that statutory texts are inherently ‘plain on their face.’” John F. Manning, Textualism as a Nondelegation Doctrine, 97 COL. L. REV. 673, 696 (1997). Rather, “modern textualists understand that the meaning of statutory language (like all language) depends wholly on context.” Manning, What Divides Textualists from Purposivists?, 106 COL. L. REV. at 75.
Just as the Eskridge brief cites Scalia, Kagan's Yates dissent, joined by Scalia, cites Scalia three times, with an emphasis on the idea that the plain meaning of a text depends on context.
One more passage from Kagan in Yates:
But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.
I respectfully dissent.
A ringing endorsement of textualism in general and Scalia approach to statutory interpretation in particular!
Is Justice Kagan setting out the premises for an self-avowedly textualist opinion in King v. Burwell that sides with the administration on the ground that the plain meaning of the statute actually supports the administration, because this is one of those cases where the context of the statute as a whole leads to the conclusion that the "the dictionary definition of a disputed term cannot control"? Does Justice Kagan hold out the hope that a plain meaning opinion might peel off one the "conservative" justices? If so, it would be one of the three who joined her opinion in Yates–Kennedy, Scalia, or Thomas.
What is Justice Kagan up to? Time will tell.