Notice & Comment

Immodest Modesty, by Jamie Conrad

Fans of Justice Neil Gorsuch have consistently celebrated his “judicial humility,” his abhorrence of inserting “personal preferences” into judicial decisions, and his “critic[ism] of judicial activism.”  The Justice himself has remarked on the “modest[y]” of the court since he joined.  (Akil Amar, who regards himself as a liberal, managed to fit “modesty” and “humility” into the same sentence in talking about Gorsuch.)  The Justice is also a marvellous prose stylist, edging out Justice Kagan (in my view) as the best writer on the court.  The Justice deploys that writing skill at almost magical levels in his concurrence on April 14 in Axon Enterprise, Inc. v. FTC, as he “arrogates to [him]self a power to control the jurisdiction of lower federal courts” even as he complains that that is what the majority is doing.  

The issue in Axon Enterprise, as described by the majority, was whether Congress, in enacting the relevant structures of the Securities Exchange Act and the Federal Trade Commission Act, had implicitly substituted an “agency-then-court of appeals” form of review of agency action for the district court review form prescribed by the “federal question” statute, 28 U.S.C. § 1331.  The majority — comprising every justice except Gorsuch — applied a 29-year old Court precedent that contains no dissents to conclude that Congress had not intended to supplant district court review.  Gorsuch concurred, but excoriated the majority for not junking the 1994 decision.  In a sentence, Gorsuch’s core position is that Section 1331 says district courts “shall have original jurisdiction of all civil actions arising under” federal law, whereas neither the Exchange Act nor the FTC Act (nor any other federal statute) “speaks otherwise” in such comparably absolute language, so Section 1331 wins.  But then Gorsuch devotes way more space to a broader argument that determinations of implicit substitution require judges to “guess” (his italics), using a test that is judge-made(mine).  He harshly derides as “fabricated,” “incoheren[t],” “magic” and a “contrivance” a test that asks “whether: (1) ‘precluding district court jurisdiction’ would ‘foreclose all meaningful judicial review’; (2) the plaintiff ’s claims are ‘wholly collateral’ to the statutory review scheme; and (3) the claims are ‘outside the agency’s expertise.’”

So Justice Gorsuch thinks the whole notion, dating back a half-century, that Congress can implicitly create alternative forms of federal jurisdication is wrong, as are the dozens of his colleagues and predecessors who have signed onto such decisions through the years.  And that it’s fine to upend well-established administrative enforcement mechanisms across the federal government, at least until Congress goes back and inserts “notwithstanding section 1331 of title 28, United States Code” into a dozen or more statutes.  But if Section 1331 “provides [such] a clear answer,” how come (i) no one had this realization before, and (ii) the other eight current justices remain so benighted?  One might be forgiven for thinking “well, that just his opinion.”  

But you would be wrong, according to Justice Gorsuch.  He explains why in this remarkable passage from his concurrence to Kisor v. Wilkie

In the real world the judge uses his traditional interpretive toolkit, full of canons and tiebreaking rules, to reach a decision about the best and fairest reading of the law. . . .  [W]e are governed not by the shifting whims of politicians  and bureaucrats, but by written laws whose meaning is fixed and ascertainable—if not by all members of the public, then at least by lawyers who can advise them and judges who must apply the law to individual cases guided by the neutral principles found in our traditional tools of interpretation.

So Justice Gorsuch’s statutory interpretations aren’t just his opinion, they’re right, because the meaning of statutes, at least their best and fairest reading, is objectively determinable, using a finite set of agreed-upon interpretive tools, at least when the judicial priesthood and their retinue of scribes is doing the interpretation.  This really is a startling ontological claim, once one moves beyond statements like “the cat is on the mat” and starts dealing with lengthy, complex statutes that interact with each other.  It’s even more audacious once the priesthood has the revelation that this “toolkit” includes the major questions doctrine, which according to Justice Gorsuch’s concurrence in West Virginia v. EPA applies when an agency (1) “claims the power to resolve a matter of great ‘political significance’ . . . or end an ‘earnest and profound debate across the country,’” (2) “seeks to regulate ‘a significant portion of the American economy,’” or (3) “seeks to ‘intrude into an area that is the particular domain of state law.’”  Sounds a lot like what he faulted the majority for in Axon Enterprises.  And who invented this toolkit?  Judges!

Gorsuch sympathetically recounts the plight of the petitioner, a single mom, who spent over six years fighting an SEC enforcement action that she got sucked into due to her evil boss’s actions.  (Though surely such considerations had no bearing on his decision in the case.)  And his approach of relying simply on the clear language of Section 1331 has a certain appeal.  But his recommended resolution of the case is not “humble” or “modest,” and ought to fit any definition of “judicial activism.”  “Arrogate” and “arrogant” derive from the same Latin word.  Judges inclined to throw the former around might want to consider whether they live in a glass house.

Jamie Conrad is the Principal of Conrad Law & Policy Counsel in Washington, D.C., and a former Chair of the ABA’s Section of Administrative Law & Regulatory Practice.

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