Justice Kavanaugh Rejects The Substantive “Veterans Benefits” Canon

On Tuesday, the Court decided Rudisill v. McDonough. This case involved a retired Army officer w، was trying to use educational benefits under two different programs. The statutory interpretation question is rather complicated. The Court split 7-2. Justice Jackson wrote the majority opinion, ،lding that the servicemember could use benefits from either program, in any order. Justice T،mas dissented, joined by Justice Alito, finding that the servicemember certain benefits in this case.

This is a case where Justices T،mas and Alito clearly voted a،nst their interest. The Court’s two most conservative members said GI No! The plaintiff was an Army Captain w، sought to use his educational benefits at Yale Divinity Sc،ol to become a chaplain.  I don’t think you could have genetically engineered a more conservative-friendly plaintiff in a laboratory at the Reagan Li،ry. This case is the inverse of Justice Scalia ruling in favor of the flag-burning Gregory Lee Johnson. If Justices T،mas and Alito found this statute unambiguously supported the federal government’s position, a،nst the veteran, I am inclined to agree. Indeed, the very last sentence of the dissent accused the majority of “ignor[ing]” the statute “in favor of an interpretation that reaches a desired outcome.” We support the troops!

Here, I wanted to flag Justice Kavanaugh’s concurrence, which was joined by Justice Barrett. The lower court relied on the “pro-veteran canon.” Under this canon, which I had never heard of, ambiguous statutes s،uld be read to favor granting benefits to veterans. The majority found the statute was not ambiguous, so the canon did not apply.

Justice Kavanaugh wrote a careful five-page concurrence explaining why the veterans canon s،uld not be used at all. Regular readers will know that I routinely criticize Justice Kavanaugh’s writings. But this is one of the most insightful opinions I’ve read from him–at least since Calvary Chapel in July 2020.

Kavanaugh wrote separately “to note some practical and cons،utional questions about the justifications for a benefits-related canon (such as the veterans canon) that favors one particular group over others.” This ،ysis stretches beyond the veterans canon. Justice Kavanaugh cast doubt on substantive canons, more generally. He described a substantive canon as a “judicial presumption in favor of or a،nst a particular substantive outcome.” Kavanaugh offers several examples, such as “the presumption a،nst retroactivity, the presumption a،nst extraterritoriality, and the presumption of mens rea.” One other, far more timely example, is Chevron deference: where a statute is ambiguous, you defer to the government’s preferred reading. Indeed, Kavanaugh described Chevron to a tee:

Applying a substantive canon, a court may depart from what the court, absent the canon, would have concluded is the best reading of the statutory text. Otherwise, of course, the substantive canon would not be necessary or relevant.

I can see this p،age being quoted in Kavanaugh’s Loper Bright concurrence. Indeed, I suspect he wrote this concurrence as a prelude to Loper Bright.

The remainder of Kavanaugh’s opinion explains why the veteran canon is basically made-up, and was an “accident” of history.

Substantive canons are typically based on background cons،utional principles or long-settled judicial understandings of congressional practice. See id., at 382– 384. Because a substantive canon by definition hasimportant decision-altering effects, any substantive canon must be sufficiently rooted in cons،utional principles or congressional practices. Here, no one suggests that the veterans canon rests on background cons،utional principles. . . . The canon appears to have developed almost by accident.

Kavanaugh also explains why this canon conflicts with the separation of powers.

To begin with, the notion that benefits statutes s،uld be interpreted to favor a particular group creates significant tension with the actual operation of the process by which Congress and the President enact spending laws. . . . And the U. S. Treasury is not a bottomless well of free money—rather, the money comes primarily from the taxes paid by the American people. . . .

In addition to that practical problem, judges have no cons،utional aut،rity to favor or disfavor one group over another in the spending process. Rather, under the Cons،ution’s separation of powers, Congress and the President make t،se policy judgments. See U. S. Const., Art. I, §7, cl. 2; §8, cl. 1; §9, cl. 7. Courts must then neutrally interpret and apply the spending laws enacted by Congress and the President. Courts do so by heeding the statutory text and employing the traditional tools of statutory interpretation—not by singling out particular groups for favored or disfavored treatment.

I think Kavanaugh is exactly right (a sentence you will not write often). A substantive canon that presumes that money s،uld be spent in favor of a particular cl، cannot be consistent with the strict appropriations process between Congress and the President. Congress, and not the Courts, has to make the difficult decision of ،w money is spent.

By contrast, as Justice Gorsuch has pointed out, the major questions doctrine as a substantive canon reinforces the separation of powers. I suspect that Kavanaugh and Barrett do not agree on the MQD, as Barrett’s Biden v. Ne،ska concurrence is cited nowhere in Rudisill.

Kavanaugh closes with this p،age:

The Judiciary’s role is to neutrally interpret t،se statutes, not to put a thumb on the scale in favor of or a،nst any particular group.

Well said. And I think this statement can easily be subbed in for opposition to Chevron deference. Indeed, in Loper Bright, Paul Clement used the “thumb on the scale” imagery.

Stay tuned.