Justice Breyer: Fighting To The End (Badgerow v. Walters)

By: Donald L Swanson

Justice Stephen G. Breyer is set to retire from the U.S. Supreme Court in a few months.

But he’s not easing into retirement. 

Instead, he’s out there swinging—fighting for his beliefs: trying to instruct / persuade current and future jurists on how the law should be applied.

Justice Breyer’s latest punch is a lone-dissent, against an eight-Justice majority, dated March 31, 2022. In this dissent, Justice Breyer explains his doctrine of statutory interpretation.   

The Breyer Doctrine

Justice Breyer’s doctrine goes like this:

“When interpreting a statute, it is often helpful to consider not simply the statute’s literal words, but also the statute’s purposes and the likely consequences of our interpretation”

  • From Justice Breyer’s lone-dissent, dated March 31, 2022, in the arbitration case of Badgerow v. Walters.

March 31, 2022, isn’t the first time Justice Breyer states this doctrine.  A decade ago, he declares the same doctrine (also in dissent) like this:

“I believe it important that courts interpreting statutes make significant efforts to allow the provisions of congressional statutes to function in the ways that that the elected branch of Government likely intended and for which it can be held democratically accountable”

  • From Justice Breyer’s four-Justice dissent, dated May 14, 2012, in the bankruptcy case of Hall v. United States.

Stating the Doctrine in Non-Partisan / Apolitical Cases

It’s interesting that these two statements of the doctrine, by Justice Breyer, occur in a bankruptcy case and an arbitration case.  That’s because both bankruptcy and arbitration are non-partisan and apolitical subjects:

  • one is that way because nobody likes it (until they need it); and
  • the other is that way because nobody cares (until it applies to them).  

Rejecting the Grammar-Only Approach

In Badgerow v. Walters, Justice Breyer is rejecting the grammar-intensive / ignore-all-else analysis of the majority opinion, which analysis includes this mind-numbing stuff:

“The phrase ‘save for [the arbitration] agreement,’” we began, “indicates that the district court should assume the absence of the arbitration agreement and determine whether [the court] ‘would have jurisdiction . . .’ without it.” Ibid. (first alteration in original). But “[j]urisdiction over what?” Ibid. “The text of Section 4,” we continued, “refers us to ‘the controversy between the parties.’” Ibid. And that “controversy,” we explained, could not mean the dispute before the court about “the existence or applicability of an arbitration agreement”; after all, the preceding save-for clause had just “direct[ed] courts” to assume that agreement away. Id., at 63. The “controversy between the parties” instead had to mean their “underlying substantive controversy.” Id., at 62 (internal quotation marks omitted). “Attending to the language” of Section 4 thus required “applv[ing] the ‘look through’ approach” as a means of assessing jurisdiction over petitions to compel arbitration. Ibid. The opposite view was not merely faulty; it was “textual[ly] implausib[le].” Id., at 65.
But Sections 9 and 10, in addressing applications to confirm or vacate an arbitral award, contain none of the statutory language on which Vaden relied. Most notably, those provisions do not have Section 4’s “save for” clause. They do not instruct a court to imagine a world without an arbitration agreement, and to ask whether it would then have jurisdiction over the parties’ dispute. Indeed, Sections 9 and 10 do not mention the court’s subject-matter jurisdiction at all.  So under ordinary principles of statutory construction, the look-through method for assessing jurisdiction should not apply. “[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act,” we generally take the choice to be deliberate. Collins v. Yellen, 594 U. S. ___, ___ (2021) (slip op., at 23) (internal quotation marks omitted). We have no warrant to redline the FAA, importing Section 4’s consequential language into provisions containing nothing like it. Congress could have replicated Section 4’s look through instruction in Sections 9 and 10. Or for that matter, it could have drafted a global look-through provision, applying the approach throughout the FAA. But Congress did neither. And its decision governs.”

A More-Balanced Approach

Instead of the grammar-only focus, Justice Breyer argues, in Badgerow v. Walter, for the following approach.

“In brief, the text does not prevent us from reading the statute in a way that better reflects the statute’s structure and better fulfills the statute’s basic purposes”:

  • “In this dissent I hope to have provided an example of what it means to say that we do not interpret a statute’s words ‘in a vacuum’”; and
  • “Rather, we should interpret those words ‘with reference to the statutory context, structure, history and purpose[,] . . . not to mention common sense.’”

“Here, these considerations all favor a uniform look-through approach. And the statute’s language permits that approach”:

  • “Interpretation of a statute must, of course, be consistent with its text”;
  • “But looking solely to the text, and with a single-minded focus on individual words in the text, will sometimes lead to an interpretation at odds with the statute as a whole.”

“I suggest that by considering not only the text, but context, structure, history, purpose, and common sense, we would read the statute here in a different way”:

  • “That way would connect the statute more directly with the area of law, and of human life, that it concerns”;
  • “And it would allow the statute, and the law, to work better and more simply for those whom it is meant to serve.”


Good for Justice Breyer!!

He’s out there fighting for what he believes is right . . . and not backing down for a second!

We would all do well to take note of the expression of his doctrine, in the two non-partisan and apolitical cases described above.

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.

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