It’s true, and you should say it
By 
Ketanji Brown Jackson filed two remarkable dissents today critiquing Court’s majority with unusual candor. In a case involving gas companies attempting to limit the reach of the Clean Air Act in a case that is about to be moot, Jackson observes that the Court is much more willing to grant standing to corporate litigants that to civil rights litgants:
This theory is, at best, dubious, particularly since these companies failed to prove that it was the EPA that caused them concrete harm. (There are many other factors pushing consumers toward more-efficient cars and electric vehicles.) Besides, the case appears to be on the brink of irrelevance: Donald Trump’s EPA seeks to repeal California’s waivers anyway, and the president recently signed a measure enacted by Congress that would nullify them. Yet the Supreme Court plowed ahead, ruling on Friday, in a 7–2 vote, that gas companies have standing to sue. In his majority opinion, Justice Brett Kavanaugh relied upon “commonsense inferences” about “economic principles” to conclude that the waivers will push automakers to sell more-efficient cars and incentivize consumers to buy those vehicles, resulting in their spending less money on gas. So gas companies suffer harm via “downstream” economic pain that qualifies as a constitutional injury.
Both Jackson and Justice Sonia Sotomayor dissented. (Justice Elena Kagan signed on to Kavanaugh’s opinion for the court—perhaps in part to build goodwill among the conservatives.) In separate opinions, the dissenters argued that the court should not have decided the case at all. Sotomayor’s dissent was brief and temperate; Jackson’s was lengthy and furious. The court’s newest justice assailed the majority’s reliance on “commonsense intuitions” to establish standing, arguing that the court’s musings about the economics of the auto market are not borne out by facts in the record. And she criticized the majority for deciding the case when it is almost certainly about to become moot anyway.
But Jackson went much further, castigating her colleagues for twisting the usual rules of standing to benefit fossil fuel companies and corporate interests more broadly. “Our ruling will no doubt aid future attempts by the fuel industry to attack the Clean Air Act,” the justice wrote. “I worry that the fuel industry’s gain comes at a reputational cost for this court, which is already viewed by many as being overly sympathetic to corporate interests.” For support, she cited a number of articles documenting this pattern beyond any doubt. Some “knowledgeable researchers,” Jackson noted, “have suggested that this reputation is unfounded. But, at this point, that unfortunate perception seems pervasive.” And “even the mere appearance of favoritism” can “undermine confidence in the integrity of the judiciary.”
The majority’s insistence on delivering a victory to gas companies here, Jackson continued, “will only harden” critics’ sense that SCOTUS changes the rules “when evaluating petitions from moneyed interests.” And, she wrote, “this court’s simultaneous aversion to hearing cases involving the potential vindication of the rights of less powerful litigants—workers, criminal defendants, and the condemned, among others—will further fortify that impression.”
Jackson then walked through a series of civil rights cases in which the Supreme Court denied standing to plaintiffs with far stronger claims than the gas companies here. “The Court’s remarkably lenient approach to standing in this case,” she warned, “contrasts starkly with the stern stance it has taken in cases concerning the rights of ordinary citizens.” Victims of racial discrimination and warrantless wiretapping, for instance, have been booted out of court for lack of standing. And yet, time and time again, powerful corporations have been allowed to pursue their cases, often all the way to a victory, with the feeblest claims of harm.
It’s the kind of thing you generally don’t see in the U.S. Reports, but it’s right, and with an entrenched 6-3 supermajority there’s no reason not to say it for posterity.
In another case in which the Court denied a claim brought by a firefighter forced to retire because of Parkinson’s who was denied healthcare benefits because of a change in company policy because ADA claims can only be brought by people who held or desired to hold their position when the discrimination occurred (although the Court did leave room for her to bring a claim based on being eligible under that standard), Jackson was similarly candid. In a footnote Sotomayor didn’t join — perhaps because she wanted to ensure that enough conservative judges would preserve the alternate path to an ADA claim — Jackson points out that a “textualism” that ignores the purpose of the statute allegedly to limit judicial discretion does no such thing:
The majority’s contention that I reject “ ‘pure textualism’ [a]s insufficiently pliable to secure the result [I] seek,” stems from an unfortunate misunderstanding of the judicial role. Our interpretative task is not to seek our own desired results (whatever they may be). And, indeed, it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best we can ascertain its intent. A methodology that includes consideration of Congress’s aims does exactly that— and no more. By contrast, pure textualism’s refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. By “finding” answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as “textual” inevitabilities. So, really, far from being “insufficiently pliable,” I think pure textualism is incessantly malleable—that’s its primary problem—and, indeed, it is certainly somehow always flexible enough to secure the majority’s desired outcome.
It is true, of course, that attempts to infer congressional intent can be used in bad faith to purse a desired policy outcome. But the same it true, of course, of any other way of reading a statute, “pure textualism” very much included. Refusing to consider the broader purposes of a statute when construing ambiguous language simply cuts off one important source of information without replacing it with anything, precisely because it increases judicial discretion rather than limiting it. And in practice, “pure textualists” are able to reach their desired results even when the statutory text unambiguously forecloses that result.