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11/08/2018

Textualism Wins...
Michael Ramsey

...in the first Supreme Court opinion in an argued case this term.  In Mount Lemmon Fire District v. Guidothe Court held (unanimously, per Justice Ginsburg) that the Age Discrimination in Employment Act (ADEA), U.S.C. § 630(b), means what it obviously says about the definition of "employer."  The relevant language is: 

The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means . . . a State or political subdivision of a State.

The question in the case was whether a political subdivision of a State (here, the fire district) must have 20 or more employees to be considered an "employer."  The answer is: of course not.  That's pretty much what Justice Ginsburg's opinion says.

The Wall Street Journal, in an editorial titled Judges vs. Telepathists -- Are the Supreme Court Justices all textualists now?, comments favorably -- noting that "The Court’s conservatives agreed with liberals though the ruling may subject cities to more litigation."  Yes, that's how textualism works.

Astoundingly, the Mount Lemmon case went to the Supreme Court because there was a circuit split, with most of the courts of appeal to consider the issue coming out the other way (the Ninth Circuit in the decision below got it right; thanks, Judge O'Scannlain). The problem appears to go back to a Seventh Circuit case, Kelly v. Wauconda Park Dist., 801 F. 2d 269 (CA7 1986), which I looked up to see how things went wrong.  And the answer is: legislative history. 

The panel there began by deciding that the text of the ADEA is ambiguous, not because the text is ambiguous but because it's a "fair and reasonable interpretation" that Congress "merely intended to make it clear that states and their political subdivisions are to be included in the definition of 'employer,' as opposed to being a separate definition of employer."  Then, having created ambiguity by imagining a purpose contrary to the plain text of the statute, the panel looked at the legislative history and found such a purpose, mainly in general statements such as “[t]he passage of this measure insures that Government employees will be subject to the same protections against arbitrary employment [discrimination] based on age as are employees in the private sector.”  And finally it ruled against Kelly, the employee, because "[i]n the face of this evidence that Congress intended [the ADEA] to apply the same coverage to both public and private employees, Kelly fails to offer any evidence from the legislative record of the 1974 ADEA amendment which supports his interpretation."  To the contrary, the panel noted with evident disdain, the employee relied only on the text of the statute!

Justice Scalia would be proud.  We have come a long way from Kelly v. Wauconda, with much credit to him.