Progressives should push back against Scalia’s claims to the judicial moral high ground
by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Justice Scalia is famous for his oft-professed commitment to a strict textualist approach to judging, which, he asserts, not only has the benefit of being “easy as pie,” but is also more respectful to the democratic processes that created the text of the Constitution or particular statutory language.  These claims often put progressives on the defensive, scrambling to find legitimate, similarly easy explanations for their disagreements with Scalia’s conservative methodology and results.  But a close look at the Supreme Court’s 8-1 decision today in Hamilton v. Lanning—with Scalia alone, dissenting—lays bare the fundamental fallacy of these claims.  Justice Scalia’s textualism is not so much about the strict legal text as it is about what he thinks the text means.  In many cases, including Lanning, the results that progressives support are just as, if not more, “textualist” than those advocated by Justice Scalia.

This would be quite unremarkable—judges frequently disagree about what the particular text of a statute or constitutional provision means, and they often write separate opinions trying to convince their colleagues and posterity that their interpretation is the correct one—if Justice Scalia did not try to claim the moral high ground as the Court’s one true textualist.  In the Lanning case, at least part of that claim is accurate—Justice Scalia got only “one” vote (his own).  Not even his conservative, textualist colleague Justice Thomas would join him in dissent.  Instead, the rest of the Court’s conservatives and liberals joined together in a legally persuasive, common-sense application of the words “projected disposable income” in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

The Lanning case was brought by Stephanie Lanning, an apparently hard-working Kansan who fell on hard financial times and was forced into bankruptcy to seek relief from about $37,000 in debt.  Ms. Lanning argued that creditors were trying to force a high monthly payment debt-repayment plan on her based on her pre-bankruptcy income, which was artificially inflated by a one-time “buyout” when she lost her job at Payless ShoeSource.  As Ms. Lanning was only able to find part-time work at JoAnn’s Fabrics after losing her job at Payless, her income was substantially lower than it was before she filed for bankruptcy.

The question before the Supreme Court was whether a bankruptcy judge can base a plan for payment of debts on the current, actual financial circumstances of the bankruptcy petitioner, rather than on a projection of income based on past financial circumstances that are no longer relevant.  Repayment plans in bankruptcy court take into account “projected disposable income.”  The bankruptcy statute does not define “projected disposable income,” but it does define “disposable income.”  Section 1325(b) of the statute provides that “[f]or purposes of this subsection, the term ‘disposable income’ means current monthly income received by the debtor,” excluding certain payments and expenses.  The statute further details how to calculate “current monthly income,” by averaging the debtor’s monthly income during the six months preceding the filing of the bankruptcy petition.  Because Congress has set forth this specific formula for determining disposable income, a debtor’s “current monthly income,” and thus the income component of her “disposable income,” is a sum certain that is fixed based on historical figures.  As Scalia acknowledges in his dissent, the “puzzle,” therefore, is what to make of the word “projected.”

The bankruptcy court—and every court up the appellate chain, up to and including the Supreme Court today—concluded that the best way to apply the statute’s directive to come up with “projected disposable income” was to look at Ms. Lanning’s actual projected income.  This would include her 6-month history of disposable income, but would also take into account the reality that this historical period included a one-time payment that will not occur again and, accordingly, does not accurately represent what her projected disposable income will be.

This not only seems to be an appropriate application of the strict text—“projected disposable income”—but it also has the benefit of making complete and utter sense.  Because “projected” is not defined in the bankruptcy statute, the Supreme Court’s opinion in Lanning relies upon the ordinary meaning of the word.  This, not incidentally, is precisely what Scalia has himself advocated; in his concurrence in Green v. Bock Laundry Machine Co., 490 U.S. 504, 528 (1989), he explained that the meaning of statutory terms ought to be determined based on what meaning of those words is “most in accord with context and ordinary usage.”  The Lanning majority proceeds to go through a handful of examples to show that most people understand “projected” outcomes to be based on an analysis of actual anticipated facts and relevant past information, not a blind application of historical fact.  For example, a company would be sure to include anticipated events and trends in projecting future sales and cash flow, not merely assume that the next quarter will be identical to the last.  A television pundit would not predict election results based on a mechanical extension of the percentages found in the first few reporting precincts.  And a sports analyst would not project that a team’s winning percentage at the end of a new season will be the same as the team’s winning percentage last year.

This seems therefore like a textual slam-dunk.  Justice Scalia even concedes the reasonableness of this point in his dissent, citing the dictionary definition of “projected” and the brief filed by Solicitor General Elena Kagan in support of Ms. Lanning: “The word ‘projected’ in this context, I agree, most sensibly refers to a calculation, prediction, or estimation of future events.”

Rather than trying to dispute this common-sense, ordinary meaning of what it means to predict or project something, Scalia acknowledges that his conclusion that Congress meant for bankruptcy judges to look only at past, irrelevant income data is a little odd: “One who is asked to predict future results, but is armed with no other information than prior performance, can still make a projection; it may simply be off the mark.”  But he throws up his hands, sighing that, as the Court’s One True Textualist, he has no choice but to adhere mechanically to this somewhat absurd reading of the statute’s text—putting Ms. Lanning in quite a pickle in the process.

While this absurdity is frustrating enough in terms of statutory interpretation, the real-world consequences of how the bankruptcy statute is applied should not be forgotten, despite the fact that Scalia asserts that they are “entirely irrelevant.”  Scalia’s interpretation of the bankruptcy code would have forced Ms. Lanning into a repayment plan that she could not possibly meet.  Ms. Lanning, like many other ordinary Americans who have no choice but to seek help in bankruptcy court, has a stable income and has committed to repaying her debts.  The protection of the bankruptcy law allows her a plan that actually works for her, rather than pushing her inevitably into greater trouble.  While Justice Scalia’s suggestion that the recipient of a “one-time bonus” will be able to use this money to stave off bankruptcy might apply to a former Goldman Sachs executive with his multi-million dollar bonus, Ms. Lanning’s one-time buyout was from her hourly-wage job at Payless ShoeSource.  Justice Scalia’s dissent in Lanning not only illustrates the slipperiness of his textualism, but also shows him to be tone deaf to how the law affects ordinary Americans.

The Lanning case shows that progressives should not be afraid of the attractive clarity and apparent ease of Scalia’s textualism.  They can embrace textualism and show that Justice Scalia’s version is not always as consistent as he claims it is.  Next time Scalia claims that progressives can only reach just results by consulting “the oracles of legislative history, far into the dimmy past,” they should remind him that the oracular visions of Justice Scalia, while perhaps more vivid, are no more legitimate.  And they should look to, and defend, statutes that truly provide for progressive outcomes and protection for the little guy (or gal).

Perhaps most important, in the end, progressives can take heart from the fact that a well-reasoned, textualist argument can win cases for the little guy in the Supreme Court, even from conservative Justices—the Lanning majority opinion, after all, was authored by Justice Samuel Alito, and joined not just by the more liberal wing of the Court but also every conservative Justice except Scalia.  It appears, at least in this case, that Justice Scalia’s version of textualism as the-text-according-to-Scalia is, fortunately, persuasive only to Justice Scalia.