LaRue v. DeWolff and a Result Oriented Use of "Plain" Language

Yesterday, the Supreme Court decided LaRue v. DeWolff, a case addressing whether individual account holders in 401(k) plans have a right to bring an action indvidually.  The Court agreed unanimously that they did.  Beneath the unanimity, however, was a five to four division on the Court, with five justices joining a majority opinion written by Justice Kennedy and the other four Justices concurring, one in an opinion written by the Chief and another in an opinion written by Justice Thomas.

We only want to point out two interesting aspects of the opinion.  First, the fifth vote for the opinion by Justice Stevens was not Justice Kennedy (who sided with the Chief) but Justice Alito.  While Justice Alito has been a disappointment on some cases (read Stoneridge), it is fairly apparent from his lower court opinions that he is less ideological than the other three conservatives (assuming one would put Kennedy in the center).  There is some hope that he will more often than the other three be able to set aside ideology and actually decide the case on the merits.

The other thing was the opinion by Justices Thomas and Scalia.  They lectured the majority for failing to base the decision entirely on the language of the statute, the "plain text" as he put it.  These are the same two Justices who, in Stoneridge, entirely disregarded the language of the statute (Section 10(b)) essentially because they did not like the private right of action under Rule 10b-5.  In other words, Justices Thomas and Scalia use the "plain language" argument when it suits them and disregard it when it does not. 

Comments

[Orin Kerr]

<i>There is some hope that he will more often than the other three be able to set aside ideology and actually decide the case on the merits.</i>

I'm curious -- do you have the same hopes for the liberal Justices? Or do you think they are just hopeless? Alternatively, do you assume that liberals decide cases on the merits while conservatives decide cases on ideology?

[J. Robert Brown]

It is a fair point and one I had to think over to provide an accurate response. I think the issue is one of detection.

I disagree with the Court in Stoneridge but I don't object to the majority's right to come out the way it did on the merits. I object to the way the Court resolved the issue.

Many of the conservative justices, it seems to me, rely on statutory constructs that lock in a certain type of analysis. Justice Scalia's emphasis on plain meaning, for example. My sense with the liberals is that they are less bound by ridgid constructs. So, Justice Ginsburg considers a wider array of sources (legislative history for one) in reaching a decision. It may be that the wider array of sources permits unprincipled decisions just as often but they are harder to detect. When a Justice like Scalia insists on a very limited approach then ignores it, without really explaining why, it is easier to detect and easier to wonder about the motives.

[Orin Kerr]

I think the point of the more "flexible" approaches to statutory interpretation is that they let judges pursue their policy preferences more easily. The poin of textualism is to constrain judges: it provides a standard for determining right answers. The difference does lead to an interesting trend, I think; when everyone is being result-oriented, the conservatives tend to be critcized more often for it.

[J. Robert Brown]

I agree that textualism constrains but not if its ignored when inconvenient.