by Barry Goldman
Laws do not interpret themselves. No matter how carefully drafted, the language of a law can never be exhaustive and exclusive. Its boundaries will be imprecise, there will be vagueness and ambiguity, and there will always be a tension between the letter and the spirit. Statutory interpretation inevitably requires reasoned judgment.
Not everyone is happy with this state of affairs. For centuries there has been an effort to squeeze the judgment out of the legal process and reduce it to a rote exercise. In the 17th century John Selden wrote:
Equity is a roguish thing. For Law we have a measure, know what to trust to; Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ‘T is all one as if they should make the standard for the measure we call a “foot” a Chancellor’s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. ‘T is the same thing in the Chancellor’s conscience.
Selden has a point. We want the law to be clear, and we want it to be uniformly applied. We don’t want judges (or labor arbitrators) to make rulings simply according to their personal preferences. Legislation is the province of the legislature, not the judiciary. All that is true. But when interpretation is required, what should be the judge’s guide?
One idea, first expressed in Heydon’s Case in 1584, has come to be called the “mischief rule.” In Heydon, Lord Coke wrote:
the office of all the Judges is to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief … and to add force and life to the cure and remedy, according to the true intent of the makers of the Act.
In other words, a judge should identify the problem the law was intended to fix, and read the statute in a way that is most likely to fix it. For example, suppose there is a law that says a train must stop if there is an animal on the track. What counts as an animal? How about three domesticated geese? In a Tennessee case in 1902 on these facts, the court reasoned that the mischief the law was intended to address was the danger of train derailment. On that theory, it found the geese were not “animals” within the meaning of the statute. If the court had not considered the mischief and applied common sense, trains would have to stop for “snakes, frogs and fishing worms.”
But the mischief rule doesn’t make the Chancellor’s foot problem go away. Someone still has to identify the mischief and the remedy. This can be done well or it can be done badly.
In Church of the Holy Trinity v. United States (1892) it was done badly. The statute at issue made it unlawful:
for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration, of any alien or aliens, any foreigner or foreigners, into the United States, its territories, or the District of Columbia under contract or agreement … to perform labor or service of any kind in the United States, its territories, or the District of Columbia.
The court read the statute and identified the mischief it sought to prevent as “the shipment of great numbers of an ignorant and servile class of foreign laborers [who are] generally from the lowest social stratum, and live upon the coarsest food, and in hovels of a character before unknown to American workmen.” Certainly the law was not intended to apply to an English minister! The court said the United States is a Christian country, and:
No one reading such a title would suppose that Congress had in its mind any purpose of staying the coming into this country of ministers of the gospel, or, indeed, of any class whose toil is that of the brain.
In between Heydon and Holy Trinity is a class of cases where reasonable minds can differ. Zarda v. Altitude Express (2020) is such a case. The question before the court in Zarda was whether Title VII, which prohibits discrimination on the basis of sex, also prohibits discrimination on the basis of sexual preference. Could a person, fired because he was gay, bring an action under Title VII? The Supreme Court ultimately found he could, reasoning:
An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
But the matter is not nearly as clear-cut as this simple statement makes it appear. In dissent at the Circuit Court level, Judge Lynch wrote:
Speaking solely as a citizen, I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.
I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago — until I actually woke up and realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.
I say all this to say statutory interpretation is a challenging business. Reasonable people of good will can disagree.
Finally, I arrive at my point. I want to talk about the Supreme Court’s analysis in Garland v Cargill, the bump stock case. As everyone must know by now, the question before the court was whether a semi-automatic rifle fitted with a bump stock is a “machinegun” (sic) under the National Firearms Act of 1934. The Act defines a machinegun as:
any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.
The mischief the Trump era ATF sought to remedy by classifying a bump stock as a machine gun came to public attention in 2017 when a lone lunatic with a bump stock was able to massacre 60 people and wound 500 more in the space of a few minutes at a concert in Las Vegas. By any reasonable definition, the weapon the murderer used that night was a machine gun. But the Court was not concerned with reasonable definitions. It was not concerned with the mischief the law sought to remedy or with anything having to do with the purpose of the legislation or the intent of the legislature. The court has a textualist majority, and textualists are concerned only with text.
The majority concentrated only on the precise wording of the statute and the precise workings of the weapon’s trigger mechanism. The GIF at the top of this piece is taken from the court’s opinion.
During oral argument Justice Kagan pleaded with her conservative colleagues to consider the practical effect of what they were doing. She said:
I view myself as a good textualist. I think that’s the way we should think about statutes. It’s by reading them. But textualism is not incompatible with common sense. At some point you have to apply a little common sense to the way you read a statute and understand that what this statute comprehends is a weapon that fires a multitude of shots with a single human action.
The majority was not persuaded.
A semi-automatic rifle fitted with a bump stock may achieve a rate of fire comparable to a machine gun, but that does not make it a machinegun in the eyes of the law. In the court’s view, a bump stock does not permit a shooter to fire many shots with one function of the trigger. A bump stock allows the trigger to function fast enough to fire as many shots as a machine gun, but each function of the trigger fires only one shot.
That may not make any difference to the people screaming, bleeding, and dying on the ground, but it makes all the difference to the majority of members of the United States Supreme Court. There is no conceivable reason that the legislature would have drafted this statute to make the distinction the court now imposes. But this court does not believe it is its responsibility to inquire into such matters.
What we have here is not a difference of opinion among reasonable people of good will. What we have in the court’s refusal to consider the mischief in this case is sheer perversity. Worse, it is murderous perversity. As a direct result of the court’s ruling in Cargill, people will die.