In last week’s Supreme Court ruling in Patchak v. Zinke the justices strongly disagreed with one another over fundamental questions about the proper roles of Congress and the courts—but they did not divide in the way that you might think. The case split the justices along non-ideological lines. Justice Thomas wrote the lead opinion for himself, fellow conservative Alito, and two moderately liberal justices, Breyer and Kagan. Chief Justice Roberts wrote the dissent for himself and fellow conservatives Kennedy and Gorsuch. Meanwhile, the Court’s two most liberal justices, Ginsburg and Sotomayor, tried to duck the question that divided their colleagues.
What was the issue that so scrambled the Court? Nothing less than what counts as a law.
Congress and the Court
Last week’s ruling arose out of a dispute over a parcel of land in Michigan known as the Bradley Property, which the federal government obtained in trust for the creation of a casino to be operated by a Native tribe. The owner of a neighboring property sued the government, arguing that the acquisition was illegal. The government defended by, among other things, invoking its sovereign immunity against private lawsuits, and that issue made its way to the Supreme Court. In a 2012 case, the Court ruled that Congress had waived its sovereign immunity and that therefore the litigation could proceed.
But before plaintiff David Patchak could obtain a judgment against the government, Congress stepped in. It passed the Gun Lake Act, which states that any litigation “relating to” the Bradley Property “shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Last week’s case concerned the constitutionality of that enactment.
Patchak argued that the contested provision was a thinly disguised effort by Congress to dictate the result of a pending case and thus a violation of the basic constitutional principle of separation of powers. As anyone who has seen Schoolhouse Rock knows, each branch of government serves a distinctive function. Justice Thomas quoted Chief Justice John Marshall’s 1825 statement that “the legislature makes, the executive executes, and the judiciary construes the law.” Patchak argued that while the Gun Lake Act had the form of legislation, in substance it was an effort to resolve a concrete case—namely his.
For the plurality, Justice Thomas appeared to concede in principle. Quoting a 2016 ruling, he acknowledged that a law that said “In Smith v. Jones, Smith wins” would be an impermissible usurpation of judicial power.
In dissent, Chief Justice Roberts said that the Gun Lake Act was the equivalent of a law that says “In Patchak v. Zinke, Patchak loses.” He noted that although the Act in theory applies to any litigation in federal court, in practice Congress intended for it to apply only to the one case. After all, the statute of limitations had run, and this was the only case pending when Congress acted.
The Plurality’s Non Sequitur
Why, then, were Justice Thomas and the three colleagues who joined his plurality opinion willing to treat the Gun Lake Act as a bona fide law rather than an attempt by Congress to direct the outcome of a particular case? Justice Thomas offered a somewhat puzzling answer. He cited the 1868 ruling in Ex Parte McCardle. There the Court held that Congress has the power to eliminate jurisdiction over a class of cases, even if, as in McCardle, a case to which the jurisdiction-stripping law applies is already pending. (The McCardle case was pending in the Supreme Court when Congress repealed the jurisdictional statute that brought it there.) “Statutes that strip jurisdiction ‘change the law’,” Justice Thomas wrote. And he construed the Gun Lake Act as a law stripping jurisdiction.
That is a puzzling line of argument, however, because it appears to be a non sequitur. Chief Justice Roberts did not deny that a law that eliminates a category of jurisdiction works a change in law. What he said was that Congress may not, in the guise of changing the law, effectively direct the result in a particular case. That objection is equally valid whether Congress directs the result in a particular case by deciding the merits or by deciding that there is no jurisdiction.
According to the dissent, a statute that says “In Smith v. Jones, the court has no jurisdiction” is no more valid than one that says “In Smith v. Jones, Smith wins.” By saying that Congress can change the law governing jurisdiction even as to pending cases, just as it can change the substantive law even as to pending cases, the plurality did not offer a real answer to the dissent’s objection, which was that in neither instance may Congress direct the outcome of a particular case under the guise of changing the law.
That is not to say that the plurality had no good answer to Chief Justice Roberts. Justice Thomas also pointed out that in other cases, the Court had accepted as legitimate exercises of legislative power “narrow statutes that identified specific cases by caption and docket number in their text.” Justice Thomas was on solid ground when he characterized prior case law as drawing the line not between the general and the specific but between acts of Congress that (permissibly) applied to pending cases and those that (impermissibly) reopened final judgments.
Should Law Be General?
Yet notwithstanding the solid basis in precedent for the plurality’s opinion, one can question its wisdom. Chief Justice Roberts correctly noted that the distinctive feature of legislation as opposed to executive or judicial action is that legislation acts generally. Sometimes a general law will apply to a very small number of concrete cases because it addresses a rare but nonetheless important problem. That does not appear to be what was at stake in Patchak, however, where Congress used the form of general legislation to target a particular lawsuit.
At the same time, it is not clear that the sound principle of generality championed by the dissent can be reduced to an administrable rule of law. How many cases must a law target to count as general? Two? Three? Ten? What if a law targets only one case, but that case is a class action involving many class members? And how are the courts to discern whether a law written in general terms that applies to a small number of cases or even to just one case impermissibly targets those cases rather than only happens to apply to them? Must members of Congress be brought to court to testify about their real motives?
These practical concerns may ultimately explain why the plurality was unwilling to treat the Gun Lake Act as the functional equivalent of a law that said “Patchak loses.” But if practical administrability was the real reason for the decision, the plurality ought to have said so. By instead paying lip service to the proposition that Congress may not enact a law directing the outcome of a particular case, while in practice allowing Congress to circumvent that principle with some minimally astute drafting, Justice Thomas endorsed an empty formalism.
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