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Three Justices and a Lack of Practicality

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Talk about your strange bedfellows. Today, when the U.S. Supreme Court extended whistle-blower protection to subcontractors of publicly held companies, liberal Justice Sonia Sotomayor dissented -- joined by the swing vote, Justice Anthony Kennedy, and conservative Justice Samuel Alito. The lineup fits no known ideological or jurisprudential category. But there is a clue to why they would all come to the same conclusion about Lawson v. FMR LLC: These three also dissented as a group last summer in the California gay marriage case. And that tells you something deep about the justices' personalities, ideals and aspirations.

The whistle-blower case arose under the Sarbanes-Oxley Act, which was enacted after the Enron Corp. scandal. Congress wanted to protect whistle-blowing employees against retaliation -- but it drafted the law badly. It said that no public company, or an employee or subcontractor of that public company, could retaliate against "an employee" for whistle-blowing. This formulation left it ambiguous as to whether the law covered only the employees of public companies, or also employees of contractors who do work for public companies.

The court's majority opted for the broader coverage. If Congress intended to encourage employees with insider information to turn in dishonest companies, it would make little sense to exclude from protection the employees of contractors. As Justice Ruth Bader Ginsburg put it in her majority opinion, this interpretation was plausibly consistent with the language of the statute, because the law never says expressly that the covered employee must work directly for the public company.

Ginsburg also pointed out that the majority's interpretation would extend the law to mutual funds, which have almost no direct employees, relying instead on contracts with privately held investment-management companies. The law would also cover lawyers, accountants and "countless" other professionals who do work on a contract basis for publicly held companies. A mix of liberal and conservative justices agreed with Ginsburg -- and there's nothing unusual about that in an ordinary, nonpolitical case involving statutory interpretation.

Sotomayor's dissent was surprisingly harsh. The law, she argued, was intended for the employees of public companies only. What seemed to bother her most was what she called the "stunning reach" of the law under the majority's interpretation. See, if no employee of a public company can retaliate against any "employee" of his or her own for whistle-blowing, then, at least in theory, the statute reaches anyone who works in any capacity for an employee of a public company. As Sotomayor put it, the law as interpreted would to extend to "nannies, housekeepers and caretakers."

Taken literally, of course, Sotomayor is correct. It would be "absurd" to extend the whistle-blower law to domestic workers whose employers happened to work for public companies. And if the word "employee" in the law is actually unrestricted, then this interpretation is inevitable.

The majority, however, was supremely unworried about this extreme possibility. Ginsburg invited Sotomayor to think about why Congress would have excluded lawyers and accountants from the reach of the law, "instead of indulging in fanciful visions of whistleblowing babysitters and the like."

So what was going on?

The clue lies in Hollingsworth v. Perry, the case in which the Supreme Court was asked to strike down California's Proposition 8, which prohibited gay marriage. The court was unwilling to conclude that Prop 8 violated the Constitution's equal-protection clause, but it nevertheless needed to find a way to make the case disappear. To do that, the majority opinion, written by Chief Justice John Roberts, said that the supporters of Prop 8 lacked standing to argue for the law before the court. Because the state of California had refused to defend it, Roberts wrote, the appellate decisions would be dismissed. For quirky reasons too complicated to explain here, the federal district court opinion striking down the law stood, and Proposition 8 was overturned without the Supreme Court having to do it.

The same combination of Kennedy, Sotomayor and Alito dissented, with Kennedy explaining that the whole point of the California referendum system was to let the people pass laws against the wishes of the government, so it made no sense to deny those same people the chance to argue for the law in court.

What do the cases have in common? Only this: Both times, the majority was motivated by practicality. It would be hard to repass Sarbanes-Oxley, so why not just interpret it to make practical sense? The country wasn't quite ready for a general right to same-sex marriage (or so the justices appeared to believe), so why not use legal creativity to make the Prop 8 case go away? The dissenters, on the other hand, were guided by the principle that justice should be done, even if it produced strange results.

For them, reliance on nearly naked practicality is repulsive. Alito and Sotomayor have almost nothing ideologically in common, but they both like to stand on principle and damn the consequences. Kennedy, for his part, goes both ways depending on the case. But unlike his moderate predecessor Sandra Day O'Connor, he always declares a principle that explains the result, and he never falls back on pragmatic compromise. The other justices -- even Antonin Scalia -- can be convinced by an argument based on common sense.

There's something admirable about justices who stand on principle and want justice to be done even if the heavens should fall. So long as they're in the minority.

(Noah Feldman, a law professor at Harvard University and the author of "Cool War: The Future of Global Competition," is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

--Editors: Mary Duenwald, Brooke Sample.

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