Between President Trump’s nomination of now-Justice Amy Coney Barrett to Justice Ruth Bader Ginsburg’s former Supreme Court seat and her confirmation, the Justice and her nomination dominated headlines and monopolized what remained of American attention spans already saturated by an election and the COVID-19 pandemic. With Senator Kamala Harris’ dual role as the democratic nominee for Vice President and a member of the Judiciary Committee, much of that attention focused on her questioning of Justice Barrett. But Justice Barrett’s response to one of Senator Harris’ questions has drawn little notice, despite seemingly going directly against what Justice Barrett has consistently described as her approach to statutory interpretation. That response suggests that the methods of Justice Barrett’s textualist approach will sometimes conflict with its goals, and an upcoming case may show whether goals or methods prevail.
Justice Barrett’s surprising statement came during an exchange concerning the current Supreme Court case California v. Texas, and understanding why it was surprising requires an excurse into that case. In brief, in 2011 the Supreme Court in NFIB v. Sebelius upheld the Affordable Care Act’s (ACA) mandate that individuals who do not carry health insurance must pay a fine, under the principle that the fine associated with the mandate is in fact a tax, and therefore is constitutional under Congress’ taxing power. Then in 2017, the Republican-controlled Congress, having failed to fully (or partially) repeal the ACA as they had promised, instead eliminated only the penalties associated with not obeying the mandate to buy health insurance (while leaving the now-toothless mandate intact). Now, twenty Republican-led States (led by Texas) are advancing two arguments in the hope that the Court will finally rule that the ACA is unconstitutional. First, they argue that without any associated penalty, the individual mandate is no longer a tax. If it is not a tax, then Congress does not have the power to create it, so the mandate is unconstitutional. Second, they claim that the individual mandate cannot be excised from the rest of the ACA, which must therefore be struck down with it. (The ACA lacks a severability clause, language included in many statutes that instructs courts that if any part of the law must be struck down, the rest shall stand.)
During day two of the confirmation hearings, Senator Harris pressed now-Justice Barrett on whether she “would consider the 135 million people who gained protections under the [ACA] when deciding a case that challenges that law” such as California v. Texas. Justice Barrett responded: “I would consider all the protections that Congress put in place. And as I said earlier, . . . the question would be figuring out whether Congress—assuming that the mandate is unconstitutional now—whether that, consistent with your intent, you know, this is Congress’ law, would permit the act to stand, or whether the flawed portion of it could just be excised out. And that is a question not of what judges want, . . . it’s a question of what Congress wanted in the statute.”
Sounds reasonable, right? Figure out “what Congress wanted in the statute” and determine severability “consistent with [Congress’] intent”? But when contrasted with Justice Barrett’s previous responses, largely to Republican senators, this answer seems inconsistent. To Senator Kennedy, Justice Barrett said that a judge ought to follow a statute’s “[original] public meaning, as distinguished from the private intentions of those who drafted the document,” that is, a statute’s meaning is equivalent to “what the words would have meant to those who read the act at the time, informed observers of the debate,” not its drafters (i.e., Congress). Justice Barrett made it clear that if a judge was to look at the intentions of the drafters or the legislative history of a statute, it would be “to determine whether there was a particular understanding of a word or a phrase,” but that “it would be in most cases inadvisable to look at legislative history to make a determination . . . about how a statute would apply to a particular set of facts.” She contrasted her approach to that of a purposivist, which she characterized as saying that “to be faithful to Congress would be to be faithful to the purpose of the statute, and that sometimes the text doesn’t align exactly with the purpose, and that in that circumstance, the judge should go with the purpose rather than the text.”
Justice Barrett’s defenders, and perhaps Justice Barrett herself, would surely say that I have found no contradiction: after all, in the judge’s exchange with Senator Ernst, she said that “the intent of the statute is best expressed through [its] words.” (This appears to be the “earlier” statement Justice Barrett references in her response to Senator Harris.) A judge looks at the words of a statute to determine the intent those words communicate. Under this view, when Justice Barrett told Senator Harris “it’s a question of what Congress wanted in the statute,” she meant the exact same thing as if she had said “it’s a question of what the words in the statute mean.”
But Justice Barrett herself contemplates the possibility that a law’s “text is clear, but inconsistent with [its] purpose.” That alone evinces her understanding that the text of a law will not always be equivalent to Congress’ purpose in passing it. In an exchange with Senator Grassley over her dissent in United States v. Uriarte (and in the dissent itself), Justice Barrett made it clear that she believes judges should not “permit the policy goals of [an] act to supersede the text.” And in continually describing herself as someone who would follow the text of the law, Justice Barrett implies that she would do so even when it conflicts with “what Congress wanted in the statute.” Furthermore, Justice Barrett, in exchanges with Senators Kennedy and Lee, emphasized that the words in a statute should be given not the meaning of any particular lawmaker(s), but the meaning understood by an informed observer at the time of the law’s passage. It is hard to square these statements with a claim that her approach is aimed at “figuring out whether Congress . . . consistent with [Congress’] intent . . . would permit the law to stand,” or that her approach is solely focused on answering the “question of what Congress wanted in the statute.”
An approach that is not solely aimed at determining Congress’ intent for a law aligns with one of textualists’ strongest arguments against purposivism: that Congress cannot meaningfully be said to have an intent or purpose at all. In her Uriarte dissent, then-Judge Barrett referenced this critique when she said “every statute requires a resolution of competing policy interests,” that the precise final balance of those competing policies renders the “purpose” of the law unknowable to a judge, and that the judge should therefore restrict herself to the text. (A stronger version of this critique holds that some laws do not have a single purpose, and are intentionally worded vaguely so that a critical mass of lawmakers will think it says what they want it to say and therefore will vote to enact it.) Justice Barrett’s endorsement of this line of reasoning further cements the argument that her goal in determining what the text of a law means is not entirely equivalent to determining Congress’ intent as expressed through that text. Therefore, Justice Barrett’s statement in response to Senator Harris’ question represents a fundamental, if subtle, departure from her other descriptions of her judicial philosophy.
This distinction is not just of scholarly interest but has real-world implications beyond the question of whether Justice Barrett gave at best contradictory and at worst misleading answers in her confirmation hearing. As Justice Barrett says, textualists see the text of the law as the best evidence of legislative intent because extratextual evidence is inconclusive. But what happens in the rare case where extratextual evidence of legislative intent is completely unambiguous?
Here we pause to make an important assumption: that the 2017 Congress that repealed the tax penalties associated with violating the individual mandate explicitly intended not to repeal the entire ACA. This is an assumption because Congress did not outright declare its intentions. Still, this assumption is safe to make because the Congress that repealed the tax penalties was the exact same one, with the same members, that repeatedly voted down whole and partial repeals of the ACA earlier that year. This leads to the inescapable conclusion that that Congress, at a minimum, did not intend the mandate not to be severable. That is, Congress may have failed to consider the issue of severability, but, given its votes six months prior, it is impossible to believe it considered the possibility that zeroing the tax penalty would lead to the entire ACA being struck down and did so anyways. From this we can infer that Congress either considered the issue and intended the mandate to be severable, or did not consider it but either would have intended the same, or would not have acted as it did.
Again, the conclusion that Congress intended the mandate to be severable is grounded in an assumption. But such an assumption involves no greater leap than assuming one’s reading of a text is the correct one. This is especially true when that reading involves putting two separate texts in conversation and reconciling them, as the Supreme Court will be called upon to do with the ACA and the 2017 tax bill in California v. Texas.
With this in mind, let us consider what it will mean if Justice Barrett participates in considering California v. Texas and determines that the ACA’s individual mandate is now unconstitutional, and furthermore that its text indicates that the mandate should not be severable. (Note that if Justice Barrett determines that the mandate is either constitutional or severable, her two stated positions are not in conflict and the thought experiment reveals nothing.) From this analysis alone, the act ought to be struck down, but Justice Barrett also sees the clear evidence that Congress intended that the mandate be severable. What will she do?
Justice Barrett’s repeated emphasis of the methods of her textualist approach suggest she would prioritize the text over Congress’s intent and strike down the law. If she does, her decision will belie the notion that she and those who apply her approach seek to do “what Congress wanted in the statute.” She will either be declaring definitively that Congress is incapable of having an intent, or that she does not care about it; either statement would be more significant than that fact that she gave something between a confusing and misleading answer during her confirmation hearing. If she holds that the mandate is severable, however, she will make an even more significant statement: that there are times when Congress expresses its intent so clearly that the Judiciary, as Congress’s faithful agent, must carry out that intent even over a textualist judge’s interpretation of the text of a law.
Joseph Blass is a Law and Science Fellow in Northwestern University’s JD-PhD program, studying Artificial Intelligence and Law. He was the Senior Notes Editor for Vol. 114 of the Northwestern University Law Review.