The Supreme Court decided two cases today, and though neither of them presents the sort of widely consequential matter that, say, the President’s student loan forgiveness plan that was argued this morning does, each has interesting aspects. Both are decided on the now-vogueish doctrine of textualism, though each shows divisions among the Justices that prove again that not only can Justices who have differing jurisprudential philosophies agree with one another as to statutory meaning, but that Justices with the same jurisprudential philosophy can disagree with one another on text as well. Thus, while there are cases, like Dobbs, where one might accurately predict the outcome on the basis of philosophy or alignment with the preferences of the President who nominated various Justices, there is a host of cases where labels don’t hold up at all.
The first of today’s cases, Delaware v. Pennsylvania, is also the first opinion rendered by Justice Jackson. As you can tell from the caption, this case involves a dispute between states, one of the very limited class of matters in which the Supreme Court has original jurisdiction. As to the ultimate holding in the case, the Court is unanimous. But it is divided 5–4 as to one of its parts. More on that later.
The case itself concerns “escheatment”—the process by which a state takes unclaimed or abandoned property. Where the property is tangible, it is a simple matter for the state in which the property is located to take it. But here, the property is an array of intangible financial products that have been abandoned and are in the possession of an intermediary known as “MoneyGram.” MoneyGram is incorporated in Delaware, and about 30 states dispute Delaware’s claim that it should get the proceeds because of that fact. Largely adopting interim recommendations of a Special Master appointed by the Court (remember that this is a case of original jurisdiction), the Court holds that, under a statute known colloquially as the Federal Disposition Act (FDA), a law that overruled Supreme Court precedents on the subject, the disputed instruments are sufficiently “similar” to money orders, which brings them into the reach of the FDA’s provision mandating escheatment to the states in which they were purchased. Thus, Delaware comes up empty.
As I noted, the Court is unanimous as to most of Justice Jackson’s opinion—indeed to the first three-and-a-half parts of it and its ultimate holding against Delaware. However, as to part IV-B, the Court was divided 5–4, with Chief Justice Roberts and Justices Sotomayor, Kagan, and Kavanaugh joining Justice Jackson. That is an interesting division because part IV-B relies upon legislative history, which is anathema to some conservatives, but apparently not to the Chief Justice and Justice Kavanaugh, at least in this case, where the federal statute applied has overruled Court precedent and the history can very well be taken to help define the meaning of the terms employed by Congress in doing so.
The day’s second case, Bittner v. United States, also offers an interesting array of Justices. The case concerns the Bank Secrecy Act (BSA) and its implementing regulations that require U.S. persons with certain financial interests in foreign accounts to file an annual report known as an “FBAR”—the Report of Foreign Bank and Financial Accounts. The statute imposes a maximum $10,000 penalty for non-willful violations of the law. The government argued that penalties for such violations apply to each account not accurately or timely reported (Bittner had five such accounts), while Bittner argued that the BSA authorizes a $10,000 maximum penalty per report, not per account. Justice Gorsuch delivered the opinion of the Court in favor of Bittner’s interpretation of the law, i.e., that non-willful violations are to be penalized on a per-report basis. However, he was joined only by four other Justices, the Chief Justice and Justices Alito, Kavanaugh, and the putatively liberal Justice Jackson, who even joined Justice Gorsuch in a separate opinion expatiating on the background of the statute and case law history. In the opposite corner of the ring, we find a group of dissenters led by Justice Barrett, who was joined by Justices Thomas, Sotomayor, and Kagan, who argued for the per-account penalty theory. Again, while textualism provides a literalistic limiting principle as to the reach of judicial authority, its application is not necessarily a black-and-white matter, and stereotyping the Justices as individuals or in alliances is frequently misleading.