Today, the U.S. Supreme Court again decided only a single case, that of Feliciano v. Department of Transportation, and, to many Court observers, the most interesting thing about it is the lineup of Justices—one that contradicts common stereotypes as to how the Justices align with respect to statutory interpretation.
The decision, while particularly important to military reservists who work for the federal government, is hardly a front-page matter to most people. Today’s holding is simple: a federal civilian employee who is a reservist called to active duty pursuant to “any other provision of law . . . during a national emergency,” as described in 10 U.S.C. §101(a)(13)(B), is entitled to differential pay if the reservist’s service temporally coincides with a declared national emergency without any showing that the service bears a substantive connection to a particular emergency. “Differential pay” closes the gap between the reservist’s civilian government pay and his or her military pay while serving on active duty “during a national emergency.”
At its core, the dispute before the Court turns on the meaning of the phrase “during a national emergency.” Is that phrase merely temporal, as the petitioner contends, guaranteeing differential pay to those federal civilian employees called to active duty service while a national emergency is simply ongoing? Or does it require an activated reservist to prove a “substantive connection between his service and a particular national emergency, as the Federal Circuit held and the government contends?” To some, this may recall the debate during the Clinton administration concerning what the definition of “is” is.
Today, Justice Gorsuch delivered the opinion of the Court, siding with the petitioner. He was joined by the Chief Justice and Justices Sotomayor, Kavanaugh, and Barrett—in other words, a five-Justice majority composed of jurisprudential conservatives and jurisprudential liberals. The majority’s interpretation revolves around the word “during,” which normally describes a temporal link, i.e., it is “contemporaneous with.” See United States v. Ressam, 553 U. S. 272, 274–275 (2008). Justice Gorsuch then cites a series of dictionaries that similarly define “during” in contemporaneous terms.
A similarly philosophically diverse group of dissenters, led by Justice Thomas, with whom Justices Alito, Kagan, and Jackson join, reject the holding of the majority that an operative national emergency need only be concurrently ongoing with active duty service to require the payment of the differential compensation. The dispute among the Justices boils down to assessing what Congress meant by a single word. Here, textualists on both sides fail, inasmuch as the word at issue can have inconsistent meanings, and the decision rests in discerning what Congress likely meant in adopting the term. The majority has case precedent and a host of dictionaries on its side in arguing that the temporal relationship comports with the general public understanding. The dissenters rely upon legislative history and supplemental executive orders to support their belief that a causal connection between the emergency and the activation of service should be required.
In the end, the Justices in the majority agree with the petitioner, and the resolution of the case has little, if anything, to do with jurisprudential philosophy.
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