In many respects, the legacy of Justice Scalia depends on whether Democrats or Republicans capture the presidency and the Senate in the coming election. With the Supreme Court closely divided on constitutional issues involving abortion, affirmative action, campaign finance, guns, and more, Justice Scalia’s successor and the justice or justices named to fill any vacancies that might open in the near future will determine whether Justice Scalia’s constitutional vision or a quite different one prevails.
But in one area—statutory interpretation—Justice Scalia’s legacy is already secure. As illustrated by Monday’s unanimous decision in Ross v. Blake, all of the justices have been influenced by Justice Scalia’s insistence on the primacy of text in statutory cases.
The Ross Case
While escorting Maryland inmate Sheldon Blake to the segregation unit, prison guard James Madigan wrapped a key ring around his hand and then repeatedly punched Blake in the face, causing Blake’s head to hit the wall. Blake later complained to a senior prison official, and the matter was referred to the state prison system’s Internal Investigative Unit (IIU), which reprimanded Madigan. Blake then brought suit against Madigan and another guard—Michael Ross—who allegedly held Blake while Madigan punched him. The case against Madigan succeeded, but the federal district court dismissed the suit against Ross on the basis of a federal statute—the Prison Litigation Reform Act (PLRA)—that requires prisoners suing in federal court for mistreatment to first exhaust their state administrative remedies.
The trial court judge concluded that Blake should have proceeded under Maryland’s Administrative Remedy Procedure (ARP) by filing a grievance with the warden. Because he failed to do so, the judge ruled that the federal lawsuit was barred by the PLRA.
The U.S. Court of Appeals for the Fourth Circuit reversed. The point of the PLRA, that court thought, was to ensure that state prisoners direct their complaints to state authorities in the first instance, coming to federal court only as a last resort. But Blake did exactly that when he initiated the complaint that led to the state IIU process. Accordingly, the appeals court concluded that Blake was excused from having to use the separate state ARP process. The appeals court picked up on a suggestion in a concurring opinion by Justice Breyer in a 2006 case, under which the PLRA incorporates traditional principles of administrative law, including the principle that the exhaustion requirement comes with an exception for “special circumstances.”
The U.S. Supreme Court unanimously reversed in an opinion by Justice Kagan. When Congress enacted the PLRA in 1995, she wrote for the Court, it made exhaustion of state administrative remedies a strict prerequisite for filing a federal civil rights suit. The relevant provision of the PLRA states: “No action shall be brought with respect to prison conditions . . . by a prisoner . . . until such administrative remedies as are available are exhausted.” Citing prior cases, Justice Kagan characterized exhaustion as “mandatory,” allowing no room for judge-made exceptions based on any “special circumstances.”
Textual Primacy in Ross
Justice Kagan’s opinion in Ross appears unremarkable but only because we live in a legal culture that has changed profoundly with respect to statutory interpretation. Until roughly the 1980s, federal courts saw themselves as partners with Congress. Courts assumed that federal statutes contained gaps and that it was their job to fill those gaps. As the Supreme Court put the point in 1964 in J.I. Case v. Borak, “it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose.”
In J.I. Case, the Court found that shareholders could sue corporate management for violations of federal securities law, even though the federal statute did not expressly provide for such lawsuits. This approach of statutory completion by the judiciary began to fall out of favor in the 1970s, but it finally succumbed under the weight of the “textualist” assault led by Justice Scalia. Writing for a majority of the Court in 2001 in Alexander v. Sandoval, he said that “private rights of action to enforce federal law must be created by Congress,” not by the courts acting to effectuate the purpose of Congress.
Ross is not a case about whether to infer a private right of action from congressional silence. Everyone concedes that Congress expressly created a private right of action in the 1871 Ku Klux Klan Act, now codified as Section 1983 of Title 42 of the U.S. Code. But Justice Scalia’s textualism is hardly limited to the question of whether to find a private right of action. Textualism posits that in general courts should look for answers in the four corners of the statutory text. If no answer can be found there, the party seeking relief—whether by way of a claim, a defense, or, as in Ross, an exception to an exhaustion requirement—loses.
And that is more or less what happened in Ross. Justice Kagan’s opinion leaves open the possibility that Blake might ultimately prevail on remand, but only if he can squeeze his request for an exception from the exhaustion requirement into the one loophole in the text of the PLRA itself: if the state’s ARP process can be fairly characterized as not “available” to a prisoner whose case has been made the subject of a state IIU investigation.
Only Justice Breyer offered any resistance to the textualism of Justice Kagan’s Ross opinion. He repeated his view that traditional administrative law principles should inform the meaning of the PLRA’s exhaustion requirement. But even Justice Breyer concurred in the disposition of the case.
The Effective End of the Statutory Interpretation Debate
The Ross opinion does not signal an end to disagreement in statutory cases. No method of interpretation can produce consistent agreement among judges, because Congress often writes statutes that are either unclear in general or as applied to particular cases.
Nor does Ross even signal an end to disagreement over the proper method of statutory interpretation. Although Justice Kagan’s opinion in Ross is highly textualist, neither she nor most of her fellow justices have endorsed textualism across the board in the way that Justice Scalia did. On the current Court, Justice Clarence Thomas is the only textualist true believer, with the balance of the justices divided among textualist fellow travelers and what are sometimes called purposivists.
By contrast with a textualist, a purposivist believes that the general purposes served by a statute should inform statutory interpretation. Justice Breyer is the leading proponent of purposivism on the current Court, often joined in this approach by the rest of the “liberal” wing: Justices Ginsburg, Sotomayor, and Kagan.
Yet, as Harvard Law Professor John Manning astutely observed in a 2011 article in The Supreme Court Review, purposivism today is not what it was five decades ago, when the Court decided J.I. Case. Professor Manning wrote that the old purposivism was “atextual” but that the “new purposivism” is “textually constrained.”
Textually constrained purposivism is not identical to textualism, either in theory or in practice. Thus, scholars continue to parse the differences among textualism, purposivism, and other approaches to statutory interpretation. But if the remaining differences are real, they are also small. As a case like Ross illustrates, on matters of statutory interpretation, Justice Scalia pulled the Court closer to his view. And as the unanimity in Ross indicates, there is little likelihood that the appointments process will change that.