Ali v. Federal Board of Prisons--Review of Decision

As I surmised in my summary of the case, the Supreme Court by a 5-4 majority (it was an "unexpected" collection of Justices in the majority because Justice Ginsburg voted with the majority and Kennedy joined Steves, Souter and Breyer in dissent) held that the phrase "any other law enforcement officer" in the phrase "any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer" (28 USC sec. 1346(b)(1)) should be broadly construed to include any law enforcement personnel and not simply law enforcement personnel who functioned as revenue or customs officers. While the Court claimed that this interpretation of the 1946 Federal Tort Claims Act was a simple and straightforward case of statutory interpretation, the effect of the ruling was to add protections to government officials against suit in dealing with prisoners or other people of low status. An equally valid "reading" of the Court's decision, in my judgment, is that it simply is a device for stripping rights from little people by a Court that generally is interested in doing precisely that.

Justice Thomas' Argument

But we have to join the decision on the basis of the argument made. I won't summarize the facts of the case; the previous essay does that. Justice Thomas' mode of arguing is neatly stated in two paragraphs. First, the "problem:"

"This case turns on whether the BOP officers who allegedly lost petitioner’s property qualify as “other law enforcement officer[s]” within the meaning of §2680(c). Petitioner argues that they do not because “any other law enforcement officer” includes only law enforcement officers acting in a customs or excise capacity. Noting that Congress referenced customs and excise activities in both the language at issue and the preceding clause in §2680(c), petitioner argues that the entire subsection is focused on preserving the United States’ sovereign immunity only as to officers enforcing those laws."

A snippet of his reasoning follows:

"Petitioner’s argument is inconsistent with the statute’s language. The phrase “any other law enforcement officer” suggests a broad meaning. Ibid. (emphasis added). We have previously noted that “[r]ead naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ ” United States v. Gonzales, 520 U. S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)). In Gonzales, we considered a provision that imposed an additional sentence for firearms used in federal drug trafficking crimes and provided that such additional sentence shall not be concurrent with “any other term of imprisonment.” 520 U. S., at 4 (quoting 18 U. S. C. §924(c)(1) (1994 ed.) (emphasis deleted)). Notwithstanding the subsection’s initial reference to federal drug trafficking crimes, we held that the expansive word “any” and the absence of restrictive language left “no basis in the text for limiting” the phrase “any other term of imprisonment” to federal sentences. 520 U. S., at 5.

The Court's decision, in a nutshell, revolved around the meaning of "any." No attention was given to larger context, to legal rules of construction, to the purpose of the statute, to the legislative history of the statute. This type of "one word" exposition reminds me of the time when I used to conduct Bible studies for fundamentalistically-inclined students. They often would love to take one verse or a few words within a verse out of the "context" or "flow" of the passage because that phrase had "blessed them" or that clause seemingly gave them a clear nugget of meaning on which to base some aspect of their lives. So the Court has done here. It takes the word "any" and runs with it. It is jurisprudence by Webster's.

The Approach of the Dissent

Justice Kennedy, who rarely is in the minority of a 5-4 vote, wrote a dissenting opinion signed by the other dissenters, in which he made two points. His first is a broad one about how to read a statute:

"Statutory interpretation, from beginning to end, requires respect for the text. The respect is not enhanced, however, by decisions that foreclose consideration of the text within the whole context of the statute as a guide to determining a legislature’s intent. To prevent textual analysis from becoming so rarefied that it departs from how a legislator most likely understood the words when he or she voted for the law, courts use certain interpretative rules to consider text within the statutory design. These canons do not demand wooden reliance and are not by themselves dispositive, but they do function as helpful guides in construing ambiguous statutory provisions. Two of these accepted rules are ejusdem generis and noscitur a sociis, which together instruct that words in a series should be interpreted in relation to one another."

Then, in connection with the actual text at issue:

"A proper reading of §2680(c) thus attributes to the last phrase (“any other law enforcement officer”) the discrete characteristic shared by the preceding phrases (“officer[s] of customs or excise” and “assessment or collection of any tax or customs duty”)."

In other words, you read a text in context--just like I used to tell my Fundamentalist brethren, before they rejected me and refused to let me lead Bible studies anymore. Then, the dissenters mention the legislative history:

"though the final reference to “any other law enforcement officer” does result in some ambiguity, the legislative history, by virtue of its exclusive reference to customs and excise, confirms that Congress did not shift its attention from the context of revenue enforcement when it used these words at the end of the statute. See, e.g., S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946) (in discussing 28 U. S. C. §2680(c) referring only to “the detention of goods by customs officers”); A. Holtzoff, Report on Proposed Federal Tort Claims Bill 16 (1931) (noting that the property-detention exception was added to the legislation to “include immunity from liability in respect of loss in connection with the detention of goods or merchandise by any officer of customs or excise”)."

Conclusion

When Fundamentalists and Modernists (terms from 20th century American Protestantism) faced each other down in the major denominations (it is still happening), something had to give. In most cases it led to denominational splits. The problem with the present US Supreme Court is that they can't divide into two "almost" Supreme Courts. So, they will just have to slug it out ideologically and come up with 5-4 decisions in many cases. And we wonder why the general respect for law is declining...

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