The longer Justice Ketanji Brown Jackson serves on the Supreme Court, the more she builds the case that her appointment to the Court may be Joe Biden’s greatest accomplishment.  I hold out hope that someday her dissents will become majority opinions, but in the meantime she is at least alerting us to where her colleagues have gone wrong.  Her dissent in Stanley v. City of Sanford is a lesson in how the Court has gone off the rails when it comes to statutory interpretation.

The question in Stanley is whether a retiree may bring a claim under the Americans with Disabilities Act (ADA) alleging that her employer discriminated against disabled workers with respect to retirement benefits.  Karyn Stanley was a firefighter for the city of Sanford, Florida. When she was hired, the City’s policy was to provide retiree health benefits for any firefighter who retired after twenty-five years of service, as well as to any firefighter who retired early due to a disability.  In a cost-cutting measure, the City later substantially reduced benefits for those who retired early due to disability, while continuing to provide health insurance for retirees with twenty-five years of service. After the policy change, Stanley became disabled and retired.  She then sued, alleging that the City’s policy violated the ADA.

In Stanley, the Supreme Court held that a retiree in Karyn Stanley’s shoes doesn’t even get in the courthouse door because the ADA does not offer any protection to individuals who no longer “hold or desire” a job.  Here’s how the majority got there: The ADA prohibits employers from discriminating against a “qualified individual” on the basis of disability.  The Act defines a qualified individual as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  The Court majority held that since, at the time Stanley was affected by the alleged discrimination, she no longer held or desired employment, she wasn’t a qualified individual, and thus, the ADA did not prohibit her former employer from discriminating against her on the basis of her disability.

Stanley’s lawyers tried to illustrate the absurdity of this interpretation of the statute in their opening brief with the following hypothetical:  “Imagine a local government that provides health insurance to its retirees, but not if they are Black.”  Retirees would not be barred from bringing a lawsuit under Title VII of the Civil Rights Act simply because they are no longer employed.  In fact, even though Title VII does not explicitly state that it bars discrimination against former employees, in 1997 the Supreme Court unanimously held that it does.  Congress enacted the ADA to provide comparable protection against discrimination to individuals with disabilities.  In her dissent, Justice Jackson pointed out that “[t]he text of the [ADA] says nothing—zero—about the preemployment or postemployment timing of an act of disability discrimination.”  There is also no dispute that the ADA’s prohibition against discrimination extends to discrimination regarding the provision of fringe benefits.  Moreover, in previous cases, the Court has held that retirement benefits are deferred compensation for prior years of service.  So, if Congress intended the ADA to prohibit employers from discriminating in the provision of retirement benefits, why would the statute bar retirees from suing to vindicate those rights?

Justice Jackson pointed out that one way to read the “qualified individual” provision is that it only applies where an individual is seeking to obtain or maintain employment.  This makes sense because the legislative history reveals that Congress included this language to address employers’ concerns about the need to be able to screen out workers who lacked the necessary skills to perform particular jobs.  The House Report on the bill noted that it did not intend to “undermine an employer’s ability to choose and maintain qualified workers.”  Here, Stanley was a “qualified individual” at the time she earned any retirement benefits, and since she was not seeking reinstatement in her lawsuit, the provision should have had no application to her case.  Justice Jackson compared the provision to a statute that authorizes NASA to give an annual award to an “amateur astronomer,” defined as “an individual whose employer does not provide any funding, payment, or compensation to the individual for the observation of asteroids.”  Justice Jackson asserted that “of course” a hobbyist does not need to be employed to qualify under this language.

The majority’s approach results in a statute that makes little sense.  If Karyn Stanley had been diagnosed with a debilitating injury or illness, and made the exact same allegations regarding retiree health benefits before her disability had progressed so much that she was forced to retire, then the Court would have allowed her lawsuit to go forward.  Justice Jackson explained that her colleagues should be asking “why would Congress hinge [Stanley’s] protection against discrimination in the benefits she earned while working on whether she wants and can perform a job in the future?”  The dominant approach to statutory interpretation on the Court these days is “textualism,” an approach that refuses to give any weight to actual legislative history, but allows the Court to engage in rank speculation about why Congress may have made particular choices about statutory language.  For instance, here the majority observed that legislation is often “the art of compromise, the limitations expressed in statutory terms often the price of passage.”  Fair enough, but there is no evidence that anyone opposed the ADA on the grounds that it might allow retirees to file lawsuits.  The majority then went on to suggest that if retirees could file lawsuits under the ADA, the effect might be to discourage employers from providing any retiree health benefits to disabled retirees.  So, here, instead of Stanley’s employer providing a limited health benefit to disabled retirees with less than twenty-five years of service, the employer might provide no health benefits to any retiree with less than twenty-five years of service.  Of course, if this concern had actually motivated Congress, it would have presumably carved out retirement benefits from the ADA’s coverage rather than allowing workers to challenge discriminatory retirement benefits before they retire, but not after.

Justice Jackson’s dissent included a scathing critique of textualism’s shortcomings:  “[P]ure 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.”  When the Justices disregard evidence of Congressional intent, they end up deciding cases based upon canons of statutory interpretation that can easily be manipulated.  Here, Stanley’s lawyers pointed out that one of those canons — avoiding surplusage — supported Stanley’s argument.  In response, the majority retorted that “the canon against surplusage is not an absolute rule.”

The Court’s role shouldn’t be as grammarians-in-chief.  Instead, the other Justices should heed Justice Jackson’s advice, and construe statutory language to give effect to the intent Congress expressed in enacting the law.