January 12, 2011

Justice Kagan's Torture Memo:" It Can't Possibly Mean That"

Folks in the commentariat seems to believe the planets are in alignment as they read (or hear about) new-Justice Elena Kagan's first Supreme Court opinion. The topic is "bankruptcy," and the general sentiment seems to be that it is only fitting for the newbie to be handed an assignment so "unimportant."

In a narrow sense, they are right: the issue is a precise point of statutory interpretation (so precise you could be excused for wondering why the Court messes with it at all). That is: does the debtor get to deduct expenses for a car payment when he owns no car? On a hasty reading, the uninitiated reader might conclude that "yes, he does get the deduction." He might also conclude that the result is a bit silly but clarity and coherence have apparently never been part of Congress' brief.

Justice Kagan was not so easily fooled. She reads the statute a second time and finds that "the key 'applicable'," and that the deduction just wasn't applicable in this case. Seven of her brethren (sic?) signed on. The opinion is a perfectly creditable piece of handiwork; you would expect no less from a first-tier Harvard law grad. From a more spacious vantage, however, the case really needs to be filed not under "bankruptcy" per se but under "statutory interpretation." And here, you might be tempted to wonder whether what they learn at the Harvard Law School is the art of torturing the statute until you extract a confession.

There's a back-story here that you'd never suss out of the opinion itself. Specifically, the language in question comes from the famous-all-over-town bankruptcy amendments of 2005, which made it much tougher for ordinary folks to get bankruptcy relief. Whether that's A Good Thing or not is the kind of issue on which, inevitably, tastes differ. But another issue, apart from substance, is quality of the statute as a piece of draftsmanship. Here there is much wider agreement: it's a mare's nest, a dog's breakfast, a can of worms, just about anything but the cat's meow. Cudgeling my brain, I can think of only one person who has ever gone on record as believing that the statute is carefully written.

No surprise, then, that an kind of cottage industry has developed in the lower courts since 2005 which you might call Saving Congress from Itself--more precisely, trying to read some sense into a statute which often doesn't make any sense. But this endeavor has not been purely technical. Rather, there seems to have developed a sense among the lower courts that what Congress intended to do was jam it to the debtor good and hard, and that if Congress didn't get it right the first time, then we must help them. Bankruptcy lawyers have fashioned a new canon of statutory interpretation: if the statute seems to favor the creditor, apply the statute; if it seems to favor the debtor, assume it's a mistake and favor the creditor anyway.

I wouldn't put Kagan in quite that camp. Her reading seems more rooted in the "Congress couldn't have said anything that stupid" school. And she obviously has a lot of company: the whole crew is on board. The whole crew, that is, with one exception: Antonin Scalia who ways in with a typical blunt assertion of a kind of plain-meaning rule (whatever Scalia may be willing to torture, you'd have to say that statutes are not on the list). As to bankruptcy issues, it's a fight he's had  before: famously with Justice Harry Blackmun and as recently as last spring, with Justice Samuel Alito.  From early in his career Scalia has made it clear that (at least on non-political, technical, issues) if Congress is determined to muck things up, he will let them muck away.

So we are left with the ironical conclusion that Justice Kagan, late darling of the left, begins her Supreme Court career by putting money in the pocket of the credit card companies. while the last man standing at the pass in defense of the beleagured debtor is Antonin Scalia.

Coda: I really don't mind the Chief Justice giving the newbie a fairly technical case on which she can win broad assent. I just hope it isn't a reflection on his view of Justice Kagan. Back in an earlier time, I remember that Chief Justice Warren Burger harbored contempt for at least two things: Justice Thurgood Marshall, and bankruptcy. So Marshall got to write bankruptcy opinions. They weren't bad opinions (Marshall had, after all, plenty of good clerks). But if that is going to be the Chief's attitude to bankruptcy cases, I suspect the Court is better off just not taking them at all.  

Second Coda:  My friend Bob thinks I am being unkind to Justice Marshall.   Maybe; I know that I take second place to  no one in my admiration of the old guy.  But I doubt that he really cared all that much about the priority of tax claims in Chapter X, or the fate of crooked securities entrepreneurs in Chicago.

[Coss-posted with some variations at Underbelly.]