Thursday, January 13, 2022

Dispatches From SCOTUS' War on the American People: Clear Text Won't Save You This Time

Today, the Supreme Court invalidated the Occupational Safety and Health Administration's vaccine-or-test COVID mandate for large businesses. The opinions span 30 pages. They could and should be less than one. The relevant statute authorizes OSHA to issue emergency rules when necessary to protect employees against "grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." COVID is an "agent", it poses "grave danger" to employees, and vaccines and/or regular testing are necessary to protect workers from their toxic and/or physically harmful effects. The statutory language is clear, the application is straightforward and that should be the end of the story.

Of course, things are never so simple with this Court, which rarely has rarely missed an opportunity to play doctor at the expense of actual doctors during a pandemic. The Court's analysis in this field has been almost utterly unmoored from pre-existing legal precedent and is, at best, "justified" by policy disagreements with Democratic elected officials which the conservative SCOTUS majority elevates to the level of novel doctrinal creations on the firm legalistic basis of "because we can". Rarely has Justice Brennan's quip that "with five votes you can do anything" been so enthusiastically lived out.

I've actually been repeatedly returning to one of the most prominent cases from my tenure as a judicial clerk, a case I've talked about before -- Keiran v. Home Capital, Inc. Keiran was a Truth in Lending Act case that was simultaneously technical and quite straightforward. TILA gives consumers making certain transactions a right to rescind those transactions within a given period of time -- typically three days, but (where the seller fails to make certain disclosures) sometimes up to three years. The statutory text states that "the obligor shall have the right to rescind the transaction ... by notifying the creditor, in accordance with regulations of the [Consumer Financial Protection] Bureau, of his intention to do so." The relevant regulations likewise state that a consumer can "exercise the right to rescind" by "notify[ing] the creditor of the rescission by mail, telegram, or other means of written communication." The CFPB, for its part, also took the view that a consumer exercises their right to rescind by notifying the creditor.

And the plaintiff in Keiran did exactly what the statute, and the regulation, and the enforcing agency, said he should do: notify the creditor that he was exercising his right of rescission. Nonetheless, a majority on the Eighth Circuit (my judge dissented) decided that the clear text of the statute, and the regulation, and the opinion of the relevant agency, all should be ignored in favor of an additional requirement -- the plaintiff must file suit within the relevant statutory time period. What motivated the court to graft on this invented hurdle? Basically, applying TILA as it was written would make big banks -- and therefore, it seems, the Eighth Circuit -- sad. That seems harsh, but there really isn't much more to it: the Eighth Circuit panel thought that this statutory process made rescission too easy, and created devious opportunities for evil, ruthless homeowners to exploit poor defenseless banks by manufacturing clouds on title. So the text doesn't matter, and the regulations don't matter, and the agency opinion doesn't matter, and the purpose of TILA as a consumer protection measure doesn't matter. If big banks need to be saved, by golly, the courts are there to come to the rescue.

Keiran was reversed unanimously by the Supreme Court in the shortest opinion of the term -- an outcome I chalked up to the difference between good lawyering the Supreme Court and mediocre lawyering at the appellate court. I still think there's something to that, at least in relatively low-salience cases. But just as Keiran demonstrated at the appellate level, NFIB demonstrates at the Supreme Court level that where a judicial majority is hell-bent on reaching a certain outcome, they certainly aren't going to let little things like clear textual mandates stop them.

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