Page:Biden v. Nebraska.pdf/34

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Cite as: 600 U. S. ____ (2023)

3

Barrett, J., concurring

the better reading leads to a disfavored result (like provoking a serious constitutional question), the court will adopt an inferior-but-tenable reading to avoid it. So to achieve an end protected by a strong-form canon, Congress must close all plausible off ramps.

While many strong-form canons have a long historical pedigree, they are “in significant tension with textualism” insofar as they instruct a court to adopt something other than the statute’s most natural meaning. Barrett 123–124. The usual textualist enterprise involves “hear[ing] the words as they would sound in the mind of a skilled, objectively reasonable user of words.” F. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J. L. & Pub. Pol’y 59, 65 (1988). But a strong-form canon “load[s] the dice for or against a particular result” in order to serve a value that the judiciary has chosen to specially protect. A. Scalia, A Matter of Interpretation 27 (1997) (Scalia); see also Barrett 124, 168–169. Even if the judiciary’s adoption of such canons can be reconciled with the Constitution,^[1] it is undeniable that they pose “a lot of trouble” for “the honest textualist.” Scalia 28.

↑ Whether the creation or application of strong-form canons exceeds the “judicial Power” conferred by Article III is a difficult question. On the one hand, “federal courts have been developing and applying [such] canons for as long as they have been interpreting statutes,” and that is some reason to regard the practice as consistent with the original understanding of the “judicial Power.” Barrett 155, 176. Moreover, many strong-form canons advance constitutional values, which heightens their claim to legitimacy. Id., at 168–170. On the other hand, these canons advance constitutional values by imposing prophylactic constraints on Congress—and that is in tension with the Constitution’s structure. Id., at 174, 176. Thus, even assuming that the federal courts have not overstepped by adopting such canons in the past, I am wary of adopting new ones—and if the major questions doctrine were a newly minted strong-form canon, I would not embrace it. In my view, however, the major questions doctrine is neither new nor a strong-form canon.

[1] Whether the creation or application of strong-form canons exceeds the “judicial Power” conferred by Article III is a difficult question. On the one hand, “federal courts have been developing and applying [such] canons for as long as they have been interpreting statutes,” and that is some reason to regard the practice as consistent with the original understanding of the “judicial Power.” Barrett 155, 176. Moreover, many strong-form canons advance constitutional values, which heightens their claim to legitimacy. Id., at 168–170. On the other hand, these canons advance constitutional values by imposing prophylactic constraints on Congress—and that is in tension with the Constitution’s structure. Id., at 174, 176. Thus, even assuming that the federal courts have not overstepped by adopting such canons in the past, I am wary of adopting new ones—and if the major questions doctrine were a newly minted strong-form canon, I would not embrace it. In my view, however, the major questions doctrine is neither new nor a strong-form canon.

[1]