JOSEPH THOMAS; VERNON AYERS; MELVIN LAWSON, Plaintiffs - Appellees v. TATE REEVES, Governor of the State of Mississippi, all in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners; MICHAEL WATSON, Secretary of State of the State of Mississippi, all in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners, Defendants - Appellants
No. 19-60133
United States Court of Appeals for the Fifth Circuit
June 18, 2020
Before OWEN, Chief Judge, and DAVIS, JONES, SMITH, STEWART, DENNIS, ELROD, HAYNES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.*
Appeal from the United States District Court for the Southern District of Mississippi
PER CURIAM:
The en banc court unanimously agrees that this court no longer has jurisdiction in this case because it has become moot. It is undisputed that the 2019 general election has occurred, and as the State itself emphasized, the current district lines will neither be used nor operate as a base for any future election.
Therefore, the judgment of the district court is vacated, the appeal is dismissed, and the case is remanded to the district court with instructions to dismiss plaintiffs’ complaint for lack of jurisdiction. See U.S. v. Munsingwear, Inc., 340 U.S. 36 (1950).
GREGG COSTA, Circuit Judge, joined by OWEN, Chief Judge, and DAVIS, STEWART, DENNIS, and HIGGINSON, Circuit Judges, concurring:
The three-judge district court statute traces back more than a century. In its long history, no court has applied the statute unless confronted with a challenge to a law‘s constitutionality. Mississippi asks our court to be the first.
What is the argument for disrupting the venerable understanding that the extraordinary
So although I join the per curiam opinion holding that this appeal is now moot, I write to explain why a plain reading of the three-judge statute as well as its ancestry reject the unprecedented notion that statutory challenges to state legislative districts require a special district court.
I.
A.
As always, the starting place is the text. The general three-judge statute states:
A district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.
Courts have uniformly given the law that everyday meaning. See, e.g., Rural W. Tenn. African-Am. Affairs Council v. Sundquist, 209 F.3d 835, 838 (6th Cir. 2000) (noting reassignment of case to single judge after dismissal of constitutional and Section 5 claims); Chestnut v. Merrill, 356 F. Supp. 3d 1351, 1357 (N.D. Ala. 2019) (rejecting argument that a single judge could not hear Section 2 challenge); Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976, 980 (D.S.D. 2004) (same as Rural West); Old Person v. Brown, 182 F. Supp. 2d 1002, 1003 (D. Mont. 2002) (single judge hearing Section 2 challenge). Their reading is consistent with a judge‘s duty to interpret the statutory language that Congress approved and the President signed by “giving the words used their ordinary meaning.” Levin v. United States, 568 U.S. 503, 513 (2013).
Against this backdrop, Mississippi offers the avant-garde view that the law also requires three-judge courts for statutory-only challenges to state legislative districts.1 The novelty of the state‘s reading does not merely suggest that the question has “gone unasked,” Willett Op. 2; it shows that the ordinary meaning of the statute is so clear that nobody ever bothered to ask the question.2
The series-qualifier principle is just a fancy label for describing how a normal person would understand
(1) challenges to “the apportionment of congressional districts” and (2) challenges to “the apportionment of any statewide legislative body.” The canon‘s intuitive nature explains why the Supreme Court, other courts, and leading treatises have taken that reading as a given. See, e.g., Harris v. Ariz. Indep. Redistricting Comm‘n, 136 S. Ct. 1301, 1306 (2016) (parenthetically describing
B.
Mississippi says this straightforward reading of the three-judge statute is wrong
That reading creates a more convoluted statutory scheme than the clear-cut distinction between constitutional and statutory claims that lawyers and judges have long understood
To be sure, “[t]he typical way in which syntax would suggest no carryover modification” in a series is to repeat a determiner like “the” before one of the series’ terms. SCALIA & GARNER, supra, at 148. Reading Law lists as one example: ”The charitable institutions or the societies (the presence of the second the suggests that the societies need not be charitable).” Id. But again, the series-qualifier canon is not a brightline rule to be applied mechanically. “Perhaps more than most of the other canons,” it “is highly sensitive to context.” Id. at 150. And here, the most natural reading of the statute is the long-accepted interpretation that “constitutionality of” modifies both kinds of apportionment challenges.
Most importantly, the use of “the” before each parallel term would not cut off the modifier “constitutionality of” in everyday English. At the risk of overdoing analogies to the sports pages, consider the hypothetical newspaper line from the motions panel opinion: “The NCAA is investigating the recruiting practices of the football program and the basketball program.” Thomas v. Bryant, 919 F.3d 298, 306 (5th Cir. 2019). As with the three-judge statute, the last “the” may not be necessary. But no reader would understand that last “the” to mean that the investigation into the football program is limited to recruiting violations while the investigation into the basketball program might also look into point-shaving or ticket-scalping violations. See SCALIA & GARNER, supra, at 176–77
Judge Willett acknowledges that the commonsense reading of this sentence is that “the recruiting practices of” applies to both sports. Willett Op. 7. But he suggests the way we read “informal, everyday phrasing” in a newspaper is different than how we should read “formal, statutory phrasing” in the law. Id. at 9. Justice Story thought otherwise:
Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 157–58 (1833). So did Justice Scalia. Reading Law explains that words in all legal instruments “are to be understood in their ordinary, everyday meanings.” SCALIA & GARNER, supra, at 69. This command to follow ordinary meaning is not just one among the many rules of statutory interpretation. It is “the most fundamental semantic rule of interpretation.” Id. Indeed, the notion that there are special, lawyers-only grammar rules for reading statutes is at odds with the principle that, in a democracy, laws should be easily understood by the people they govern. See generally Note, Textualism as Fair Notice, 123 HARV. L. REV. 542 (2009); cf. Sessions v. Dimaya, 138 S. Ct. 1204, 1225–26 (2018) (Gorsuch, J., concurring in part and concurring in the judgment) (“Perhaps the most basic of due process‘s customary protections is the demand of fair notice,” id. at 1225).
Yet Judge Willett says that the statute‘s “particular grammatical construction” sets it apart from the newspaper line, so it requires more legalistic scrutiny. Willett Op. 10. But is it so unusual that ordinary people would not understand it? Take a look at the earlier example from Reading Law: “The charitable institutions or the societies.” SCALIA & GARNER, supra, at 148. That sentence‘s natural reading is that “charitable” applies only to “institutions.” The reason is that the modifier “charitable” appears between the first “the” and that determiner‘s noun, “institutions.” Because there is no corresponding modifier between “societies” and its determiner, it is clear that no modifier applies to “societies.” But the example‘s structure is different than that of the three-judge statute. Imagine it instead mirrored the statute‘s “constitutionality of” structure: “The charity of the institutions or the societies.” An unusual construction, but not an ambiguous one. A reader would assume that “charity” modifies both “institutions” and “societies.” The difference is that, in this variant, the modifier precedes both parallel terms and their determiners.6 So too with the three-judge statute.7
Mississippi makes a second unconvincing textual argument. It asserts that another canon subverts the natural reading of the statute that the series-qualifier canon confirms: the canon against surplusage. That canon advises that “a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (cleaned up) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)). Mississippi points out that, if the three-judge statute applied to constitutional challenges against both apportionment of congressional districts and statewide legislative bodies, its second use of the phrase “the apportionment of” would be unnecessary. The statute could have the same meaning if it read as follows:
A district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the
apportionment of congressional districts or
the apportionment ofany statewide legislative body.
That is true. But once again Mississippi treats a canon meant to describe how people typically speak and write like an uncompromising rule. As our full court recently emphasized, “the canon against surplusage yields to context as it expresses courts’ general reluctance to treat statutory terms as surplusage.” Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 294 (5th Cir. 2020) (en banc) (cleaned up) (quoting Bd. of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788 (2011)). That general reluctance “does not require us to avoid surplusage at all costs.” United States v. Atl. Research Corp., 551 U.S. 128, 137 (2007).
We sometimes accept a little surplusage because we acknowledge that the canon‘s premise—that legislators do not include in statutes words that have no effect—“is not invariably true.” SCALIA & GARNER, supra, at 176. “Sometimes drafters do repeat themselves and do include words that add nothing of substance . . . .” Id. at 176–77. Repetition and parallelism are features of how ordinary people—and extraordinary ones—speak and write. See, e.g., Abraham Lincoln, Gettysburg Address (Nov. 19, 1863) (“[G]overnment of the people, by the people, for the people, shall not perish from the earth.“). So when all other indicators support a plain reading of a statute, we will not let minor repetition steer us toward a farfetched one. And that is exactly what Mississippi asks us to do here: throw out a longstanding, commonsense construction of the three-judge statute just to avoid making a short phrase redundant.
Besides, Mississippi‘s view of
A district court of three judges shall be convened when . . . an action is filed
challenging the constitutionality of theapportionment of congressional districts or the apportionment of any statewide legislative body.
In fact, by using just one determiner before each type of suit, that version of the statute would more clearly delineate between those suits and better support Mississippi‘s position. But Congress chose to include that second “the.” So as it turns out, both parties’ readings leave the statute with an extra “the.” Faced with two interpretations that each contain some surplusage, we should give the statute its natural meaning.
Statutory interpretation is not a lawyer‘s game to “divine arcane nuances” and “discover hidden meanings.” See SCALIA & GARNER, supra, at 69; see also id. at 177 (explaining that a “clever interpreter” can abuse the canon against surplusages by “creat[ing] unforeseen meanings or legal effects” from “stylistic” repetition). Our duty instead is to follow the natural, everyday meaning of the words enacted into law. Id. at 33 (“The interpretive approach we endorse is that of the ‘fair reading‘: determining the application of a governing text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.“). The plain reading of the three-judge statute is that it applies only to suits alleging that a law is unconstitutional. Calling the contested “the” a textual mousehole is being generous.
II.
Even if an extra definite article opens the door ever so slightly to some ambiguity,
Congress first enacted the three-judge statute in the aftermath of Ex parte Young to require three judges to hear what it predicted would be an increasing number of suits challenging state laws “upon the ground of the unconstitutionality of such statute.”
But in the mid-1970s, Congress scrapped most of the three-judge district court regime because it was burdening the Supreme Court as well as lower courts and had resulted in procedural complexities. See 17A WRIGHT ET AL., supra, § 4234, at 195–98; see also Kalson v. Paterson, 542 F.3d 281, 287 (2d Cir. 2008) (noting that the 1976 Act “vastly reduced the category of cases for which a three-judge court is mandated“). It nonetheless retained the procedure for a small set of important cases: constitutional challenges to redistricting for congressional and state legislative seats, then-recent phenomena in the aftermath of the revolutionary one person, one vote line of cases. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964).
Congress was thus narrowing the reach of the three-judge statute when it added the current language. It is implausible (to put it mildly) that while otherwise contracting the statute, Congress decided to expand it beyond constitutional challenges for the first time. Indeed, neither Mississippi nor Judge Willett explain why a law shrinking the three-judge statute should be read to enlarge it. That unplugged hole in their argument is especially damaging considering that Congress‘s “one reason” for creating three-judge courts was “to save state and federal statutes from improvident doom, on constitutional grounds, at the hands of a single federal district judge.” Gonzalez v. Automatic Emp. Credit Union, 419 U.S. 90, 97 (1974) (emphasis added). It is particularly hard to believe that Congress would have made such a significant and discordant change by merely adding an extra “the.”
Reading the statute in the way Mississippi urges does not make sense for another reason: Why would Congress require three judges to hear statutory claims challenging state legislative redistricting but not congressional redistricting? Federalism concerns cannot explain the difference. While a state of course has a strong interest in how it apportions its legislature, it also has a strong interest in choosing how to divvy up its citizens into congressional districts. In fact, contemporary critics of the initial judicial foray into review of legislative apportionment viewed courts’ redrawing of congressional districts as more intrusive on traditional state prerogatives than judicial redrawing of state legislative districts. That is because of the view that Article I of the Constitution grants “States . . . plenary power to select their allotted Representatives in accordance with any method of popular election they please, subject only to the supervisory power of Congress.” Wesberry v. Sanders, 376 U.S. 1, 23 (1964) (Harlan, J., dissenting).
There is a further problem with concluding that the 1976 Congress extended three-judge courts to cover statutory challenges: such claims were not common then. It was not established in the 1970s that Section 2 of the Voting Rights Act provided a private right of action. See City of Mobile v. Bolden, 446 U.S. 55, 60 (1980) (assuming without deciding such a suit could exist). A few years later, the Supreme Court held Section 2 did not prohibit discriminatory effects, which meant it provided no guarantee beyond what the Constitution already did. See id. And the typical pre-1982 Section 2 claim that courts did consider was a challenge to at-large electoral systems, not the drawing of single member
Judge Willett and I agree on this history, but we differ on the takeaway. See Willett Op. 13–17. I draw this lesson: Congress would not have used an extra “the” to distinguish between constitutional and statutory apportionment challenges when the latter kind of action was not even on its radar screen. The idea that we should extend the three-judge statute to statutory challenges because the 1976 Congress would have wanted that if only it had known what the future held does not treat text as “the alpha and the omega” of statutory interpretation. Willett Op. 1. Instead, the text fits neatly with what the historical backdrop suggests. The Congress amending the three-judge statute would have been focused only on constitutional challenges.
To sum up, Mississippi would give this much weight to the “the” that comes before “reapportionment of any statewide legislative body“: Insertion of that article would require three-judge panels for exclusively statutory claims—followed by direct appeal to the Supreme Court,
III.
We are now beyond belts and suspenders. The ordinary meaning of the three-judge statute is the interpretation every court has given it. And the statute‘s history reinforces that it covers only constitutional challenges.
But even if the text of three-judge statute remains a “brain teaser,” Willett Op. 10, open to more than one “plausible reading,” id. at 29, the Supreme Court has told us how to solve the puzzle.10 The tiebreaker is a “canon of narrow construction” for three-judge court statutes. Gonzalez, 419 U.S. at 98 (“[W]e have stressed that the three-judge-court procedure is not ‘a measure of broad social policy to be construed with great liberality.‘” (quoting Phillips, 312 U.S. at 251)). It reflects concerns over the “serious drain” that three-judge district courts have on the judiciary‘s resources as well as the impact of an automatic appeal on the Supreme Court docket. Phillips, 312 U.S. at 250Phillips became “the Court‘s favorite quotation.” 17A WRIGHT ET AL., supra, § 4234, at 197 (collecting cases).
This rule of construction no longer appears with such frequency. But reduced citations do not allow us to jettison Supreme Court precedent. See Ramos v. Louisiana, 140 S. Ct. 1390, 1416 n.5 (2020) (Kavanaugh, J., concurring) (“[F]ederal courts have a constitutional obligation to follow a precedent of this Court unless and until it
on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.“). But see Willett Op. 21–22 (questioning the continued application of the canon because the concerns that motivated it are no longer as salient). Because it is still on the books, the rule of narrow construction resolves this case even if Mississippi‘s argument has cast any doubt on the widely accepted meaning of the law.
* * *
The plain meaning of the statute‘s text, uniform caselaw applying the statute, the statutory history, and the rule that three-judge statutes should be construed narrowly all favor the district court‘s view that three judges are not required for a suit raising only statutory challenges to state legislative districts. To come to Mississippi‘s contrary and unprecedented conclusion would require us to wrench an elephant out of the tiniest of mouseholes.
JOSEPH THOMAS; VERNON AYERS; MELVIN LAWSON, Plaintiffs - Appellees v. TATE REEVES, Governor of the State of Mississippi, all in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners; MICHAEL WATSON, Secretary of State of the State of Mississippi, all in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners, Defendants - Appellants
No. 19-60133
United States Court of Appeals for the Fifth Circuit
June 18, 2020
DON R. WILLETT, Circuit Judge, joined by SMITH, ELROD, DUNCAN, and ENGELHARDT, Circuit Judges, concurring in the judgment:
The en banc court is unanimous on the “what“—vacate the district court‘s judgment. But we have assorted views on the “why.”
Vacatur is the correct result, but for more than one reason. Putting aside mootness (lack of a live controversy), there exists a separate problem (lack of jurisdiction). The most forthright, text-centric reading of
I
“Text is the alpha and the omega of the interpretive process.”1 And as this is fundamentally a statutory-construction case, we begin (and end) with the actual language that Congress chose.2 Section 2284(a) states:
A district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.
A divided merits panel labeled these words “clear.”3 A divided motions panel said they had a “natural reading.”4 If only.
Here are the two competing interpretations:
Option A (Thomas)—a three-judge court is required to decide:
(1) the constitutionality of the apportionment of congressional districts; or (2) the constitutionality of the apportionment of any statewide legislative body.
Upshot: Only constitutional challenges to state and federal legislative maps require three judges; purely statutory disputes can be heard by a single judge.
Option B (the State)—a three-judge court is required to decide:
(1) the constitutionality of the apportionment of congressional districts; or (2) the apportionment of any statewide legislative body.
No. 19-60133
Upshot: All challenges, both constitutional and statutory, to state maps require three judges—but only constitutional challenges to federal maps require three judges.
The core interpretive question is simply stated: Does “constitutionality of” in
Language is often slippery, particularly legislative language. Chief Justice Marshall famously made the point 201 years ago: “Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea . . . .”5
A
Litigants in our adversarial system are loath to concede imprecision, insisting forcefully, if not always convincingly, that the statutory text “plainly” or “clearly” cuts their way. Here, each side insists that
The lion’s share of twenty-first century appellate judging is reading legislative language and deciding what it means. In today’s statute-laden era, how we decide—legisprudence: the jurisprudence of legislation6—is as weighty as what we decide. Methodology matters. So we must be mindful of our duty to behave judicially by
All to say, textual interpretation demands unswerving fidelity to text. “Judges are minders,” after all, “not makers or menders.”9 True, statutory language is now and again imprecise—sometimes inadvertently, sometimes intentionally. And while judges don’t have, and rarely need, secret decoder rings to decrypt legislative text, we routinely use various tools to glean meaning. “Statutory language, like all language, is suffused with age-old interpretive conventions. And judges, like all readers, must be attentive not to words standing alone but to surrounding structure and other contextual cues that illuminate meaning.”10
Time-honored canons of interpretation can help, provided the canons esteem textual interpretation. True, the canons are not inexorable commands, but neither are they window dressing. They are venerable interpretive presumptions about what smartly produced language means. The canons exist to clarify meaning, not to cloak it. And no canon, however esteemed, can defeat the obvious, non-absurd meaning of clearly drafted text. In this case, however, the text is anything but clearly drafted. And as we try to solve the statutory puzzle, some familiar canons, both syntactic and contextual, reveal
B
Batting leadoff today, the series-qualifier canon.11
The series-qualifier canon is a syntactic canon that looks to the grammatical arrangement of words in a sentence. Specifically, when does a modifier apply to a parallel series, and when does it not? The general rule: “When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.”12 Consider these case examples, gathered in Reading Law:
- Charitable institutions or societies (charitable modifies both institutions and societies).
- Internal personnel rules and practices of an agency (internal personnel modifies both rules and practices).
-
Intoxicating bitters or beverages (intoxicating modifies both bitters and beverages).
- Forcibly assaults, resists, opposes, impedes, intimidates, or interferes with (forcibly modifies each verb in the list).
- Willfully damage or tamper with (willfully modifies both damage and tamper with).13
But there’s an important caveat to this carryover rule, one we recently applied.14 No carryover modification is suggested when “a determiner (a, the, some, etc.) [is] repeated before the second element.”15 Justice Scalia and lexicographer Garner provide some no-carryover illustrations:
- The charitable institutions or the societies (the presence of the second the suggests that the societies need not be charitable).
- A solid wall or a fence (the fence need not be solid).
- Delaware corporations and some partnerships (the partnerships may be registered in any state).
- To clap and to cheer lustily (the clapping need not be lusty).16
Now let’s return to our statute,
The district court cited the series-qualifier canon but misapplied it, inexplicably failing to even acknowledge
[C]onsider what a reader would think after seeing the following in the newspaper: ‘The NCAA is investigating the recruiting
practices of the football program and the basketball program.’ As with the three-judge statute, the final ‘the’ may not be necessary. But would it make the reader think the investigation into the basketball program is not limited to recruiting violations . . . ?20
We do not disagree. But if anything, the NCAA illustration (which tellingly uses a different structure from the one in
Used properly, the canons are neutral guides to reveal, not conceal, meaning. “Often the sense of the matter prevails,”21 and no sensible user of English believes the canons should contort obvious meaning. As the NCAA example is utterly clear on its face, no canons are needed to divine its meaning. The gist of the language is instantly clear to the relevant linguistic community. But
This approach accords with the principle that words “are to be understood in their ordinary, everyday meanings.”24 First, we start with the plain meaning of the text, and if it’s obviously a spade, we call it a spade. But sometimes obviousness doesn’t work. When it’s unclear whether it’s a spade or a mattock, we consult the canons.
This is precisely what a unanimous Supreme Court did earlier this year in Shular v. United States.25 Considering the rule of lenity, the Court explained that the substantive canon “applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.”26 Of course, the canons of construction—linguistic, substantive, or otherwise—cannot trump plain statutory language. But if a statute is not clear on its face—if the ordinary meaning is not immediately self-apparent—then the canons can help decipher the most textually plausible reading. Indeed, the law is rich in interpretive conventions.27 And in the realm of public lawmaking, when judges
Because we believe
are grappling with enacted texts, linguistic canons apply commonsensical rules of syntax to help us decode the meaning of language.28
Back to the motions panel’s NCAA example, which uses informal, everyday phrasing to smuggle in an assumed “natural” reading of formal, statutory phrasing. This is classic question-begging. The premise (the canon is inapplicable when the text is clear) assumes the truth of the conclusion (the text is clear). But unlike the NCAA example, whose sense is a no-brainer,
The series-qualifier canon ought to be applied—together with its critical “determiner” exception. We recently (and correctly) applied the canon—determiner and all—in Vaughn, holding that a determiner divided a statute into discrete parts, thus revealing its “correct and more natural” reading.29 So too here. The precise syntax of
C
But the series-qualifier canon isn’t the only relevant interpretive canon. The surplusage canon, a contextual canon, also applies. And notably, while it is true that one canon may be subject to defeasance by another, here, both the series-qualifier canon and the surplusage canon point in the same direction. The inferences drawn are not competing, but complementary.
The surplusage canon, lauded as a “cardinal principle of statutory construction” by the Supreme Court,30 teaches “it is no more the court’s function to revise by subtraction
the constitutionality of the apportionment of congressional districts or
the apportionmentof any statewide legislative body.
Thomas avers that “the apportionment” “is simply a few redundant words.” But that’s precisely what the surplusage canon seeks to avoid, the notion that Congress’s words can be deemed idle, pointless, or nonoperative. It’s the business of courts to take lawmakers at their word, and to presume they meant what they said. On this vital point, the Supreme Court has been unsubtle: “[W]e must give effect to every word that Congress used in the statute.”36
Thomas also insists, quoting Justice Thomas, that we need not “avoid surplusage at all costs. It is appropriate to tolerate a degree of surplusage rather than adopt a textually dubious construction that threatens to render the entire provision a nullity.”37 But the canon’s application here wouldn’t render any part of the provision a nullity; it would just lead to a result that Thomas dislikes. It’s true we don’t avoid surplusage at all costs—but we do, and we must, avoid it. Here, the surplusage canon counsels against slighting even “a few redundant words” in the statute. Those words are given robust meaning by Mississippi’s reading: If “constitutionality of” does not carry over, then “the apportionment” is not rendered superfluous.
D
Thomas does ask us to employ one canon of construction—“that statutes should not be construed in a way that leads to absurd results.”38 Our precedent, however, is not on Thomas’s side. As we recently held, “The absurdity bar is high, as it should be. The result must be preposterous, one that ‘no reasonable person could intend.’”39 Justice Scalia and Garner essentially
case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.”41
Thomas’s alleged absurdity: “state legislative redistricting cases brought solely under § 2 would be heard by three-judge courts while similar congressional redistricting cases would be heard by single judges.” But having a different judicial mechanism for hearing challenges to federal districts than to state districts seems a quintessential policy judgment for Congress. It may be good (or bad) policy, but it’s light years away from absurd.42
In sum, the absurdity doctrine is inapposite here. The only two relevant canons of construction—the series-qualifier canon and the surplusage canon—work in tandem in favor of the State’s “three-judge court” position.
II
The pertinent canons provide guidance enough to arrive at a conclusion:
First, our surest guide to what Congress pondered is what Congress passed.45 But if
apportionment challenges and apportionment challenges brought under § 2 of the Voting Rights Act.”47 This is because, when the relevant language from the three-judge court statutes was revised in 1976, “§ 2 of the Voting Rights Act was not available to litigants seeking to challenge apportionment.”48 Most challenges were constitutional, and the “established statutory basis for such apportionment challenges was § 5 of the Voting Rights Act, whose own statutory provisions required the convening of a three judge-court.”49
As late as 1980, the Supreme Court “had not even definitely determined whether § 2 of the Voting Rights Act created a private right of action for voters.”50 So when our contested language was drafted almost 45 years ago, Congress would have expected all apportionment challenges to go to a three-judge panel, as all cases attacking “the legitimacy of the state legislative apportionment” are “highly sensitive matters.”51 To the extent that voters had a statutory private right of action, they did so under section 5, which, again, provided for a three-judge panel.
The motions panel majority inferred from this statutory history that Congress could not have had a “special concern” with statutory challenges in 1976. But it is Thomas’s reading of
The Third Circuit was correct. The enacted lineage of the Act, how the statutory text changed over time, tracks
state maps affecting (and reflecting) state interests and state considerations,
Indeed, had Congress wanted single district judges to decide standalone section 2 challenges to state maps, it certainly had better, simpler ways of saying so. Congress could have made things crystal clear by writing simply (and without surplusage) that a three-judge court is needed to decide only:55
- Option 1: “the constitutionality of the apportionment of congressional districts or
the apportionmentof any statewide legislative body” - Option 2: “the constitutionality of the apportionment of congressional districts or [of] the apportionment of any statewide legislative body”
- Option 3: “the constitutionality of [either] the apportionment of congressional districts or the apportionment of any statewide legislative body”
But Congress said no such thing. Instead Congress determined to use a determiner. Our task is not to imagine what the 1976 Congress would have wanted. It is to discern meaning in the words the 1976 Congress actually passed. In sum,
The statute itself is what constitutes the law. And since we are a Nation of laws, not of legislative histories, we decline the legal scavenger hunt that turns statutory construction into statutory excavation.
No. 19-60133
Another argument against Mississippi’s reading of
But there is a sequence that must be followed. As the Supreme Court has repeatedly made clear, most recently a few months ago, substantive canons of construction are not applied at the outset of textual inquiry.60 Why? Because a substantive canon (and the social policy it enhances) can never defeat concrete text (and the congressional policy it enshrines). Moreover, even if a statute is deemed ambiguous, traditional canons of interpretation must be invoked first. And if those text-centric canons yield an answer, then that’s that; the thumb-on-the-scale substantive canons have no role.
Take the rule of lenity. Described by then-Professor Barrett as “a rule of thumb for choosing between equally plausible interpretations of ambiguous text,”61 the rule of lenity has been around for at least half a millennium.62 It sometimes plays a role, but one more cameo than starring—and only in the final act, if at all. Again, there’s a sequence to things. And that’s because there’s a supremacy to things. Faithful statutory interpreters rightly insist, vehemently so, on legislative supremacy: taking Congress at its word. Thus, there must be ambiguity before there can be lenity.63 So even if a less-harsh result is grammatically possible, courts are duty-bound to seek the truest meaning, not the tenderest one.64 If a statute has an interpretation that is most plausible, as opposed to dueling interpretations that are equally plausible, then the lenity canon remains holstered.
As noted above, the Supreme Court made this exact point recently—and unanimously—in Shular. Speaking through Justice Ginsburg, the Court refused to apply the rule of lenity, stressing that it “applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.”65 The Shular Court put it simply: “Here, we are left
canons over substantive canons, explaining that the rule of lenity plays a role at the end of the interpretive process, not at the beginning, and only if, after all the traditional tools have been employed, the statute remains not just ambiguous, but “grievously ambiguous.”67
The same principle applies here. As the motions panel conceded, Allen’s strict-construction preference applies only “[t]o the extent there is ambiguity.”68 And if textual canons succeed in revealing
But even if the traditional, text-focused canons (series-qualifier and surplusage) did not erase ambiguity, Allen itself shows that invoking “strict construction” does not guarantee checkmate. A central question in Allen was whether section 5 of the Voting Rights Act authorizes three-judge courts only in declaratory-judgment suits brought by States or also in section 5 suits brought by private litigants.69 The Supreme Court held that, even strictly construing the three-judge language, Congress wanted all section 5 disputes to be heard by three-judge courts.70 Despite the difficulty of judicial
Notes
- Original Reading Law Example— [1] The charitable institutions or [2] the societies.
- Reading Law Variant— The charity of [1] the institutions or [2] the societies.
- Section 2284(a)— [T]he constitutionality of [1] the apportionment of congressional districts or [2] the apportionment of any statewide legislative body.
“A district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts or
Or he would add words so that the statute reads this way:
“A district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts or the [constitutionality of the] apportionment of any statewide legislative body.”
The former alteration treats part of the statute as surplusage. See infra I(C). And the latter alteration collides with the Supreme Court’s admonition, recently (and unanimously) reaffirmed, that judges “may not narrow a provision’s reach by inserting words Congress chose to omit.” Lomax v. Ortiz-Marquez, No. 18-839, 2020 WL 3038282, at *3 (U.S. June 8, 2020).
statutes should be construed as narrowly as possible.” Id. at 582 n.1 (Harlan, J., concurring in part and dissenting in part). That’s because, generally, those bringing section 5 claims could also bring constitutional claims. Id. The same is true here.
The Court went on to emphasize that these problems are even more severe when “the enforcement of state enactments may be enjoined and state election procedures suspended because the State has failed to comply with a federal approval procedure.”73 To be sure, section 5 is distinct from section 2, so Allen doesn’t directly control. But Allen is eminently instructive because its holding did not hinge on preclearance. There’s certainly not the same degree of confrontation between state and federal governments when suits are brought by individuals. But the Allen Court determined that the “potential for disruption of state election procedures remains” when individuals bring suit.74 And suits by individuals still create the prospect, as here, of a single federal judge overseeing state election procedures. These grave federalism concerns are not erased just because the federal oversight is by a life-tenured Article III judge rather than by an Article I department.75
Moreover, when Allen was decided in 1969, three-judge courts were required to hear all claims for injunctive relief against States (and their officials) and all constitutional claims seeking to enjoin a federal statute.76 Appeals from those actions were taken directly to the Supreme Court.77 This imposed a heavy judicial-administration burden. And it’s against that backdrop that the Supreme Court held that three-judge statutes were to be strictly construed. Then, in 1976, Congress significantly narrowed the universe of actions that required three-judge courts.78 And after Congress stepped in, it seems the Supreme Court has found little need to prophylactically apply the strict-construction gloss.79
When Allen is considered in light of the old three-judge-court regime under
ago.80
IV
Finally, Thomas invokes custom, stressing that no circuit court has ever interpreted
True, none of our sister circuits have ever confronted this question.82 There‘s a simple reason for that: No defendant has ever pressed it.83 In most reapportionment cases, statutory claims are asserted alongside constitutional claims, rendering moot the 3-judge vs. 1-judge question. But neither litigation practice, however customary, nor “settled understanding,”84 however inured, can stand against the law‘s demands.85
This is a bedrock principle. Today‘s case is, after all, a statutory-interpretation dispute, and what matters most are Congress‘s words, not the until-now-unchallenged assumptions of litigants. The Supreme Court has put it plainly: “a ‘long-established practice’ does not justify a rule that denies statutory text its fairest reading.”86 Our loyalty runs to Congress and its commands. And as Congress‘s faithful agents, we must choose fidelity to explicit enactments over the continuity of implicit arrangements. Supreme Court examples abound, such as the Court‘s 1998 decision rejecting Pennsylvania‘s argument that Congress would never have imagined that the Americans with Disabilities Act would apply to state prisoners.87 The Court explained that where statutory meaning is clear (as in today‘s case once you apply the linguistic canons), it‘s “irrelevant” whether a specific application was anticipated by Congress.88 Our duty is to legislative text, not to litigation habits that, until now, have gone merrily along, unexamined.
Just this week, the Supreme Court issued a landmark decision, holding that the 56-year-old Civil Rights Act forbids workplace discrimination on the basis of sexual orientation or gender identity.89 Specifically, the Court declared that “because of sex” encompasses “because of sexual orientation or gender identity.” The latter is not distinct from sex discrimination, but a form of it. Hearteningly, all nine Justices applied textual analysis to Title VII, as we do today with
A time traveler from 1964 would doubtless express astonishment that Congress had, unwittingly and unbeknownst to everyone, equated sex discrimination with sexual orientation discrimination (much less with gender identity discrimination)—and that it had done so by adopting a one-word amendment (inserting “sex“) from a representative who was cynically trying to scuttle the entire Civil Rights Act.94 But the Bostock majority focused on the “broad language” that Congress adopted, not on the ripple effects, however unforeseen, that flowed from it five decades later.95 The Court thus gave no interpretive weight to the fact that not a single drafter of Title VII in 1964 intended, noticed, or anticipated that “because of . . . sex” would cover discrimination against homosexual or transgender persons. The Court remarked that resorting to “expected applications” or only those “foreseen at the time of enactment . . . seeks to displace plain meaning of the law in favor of something lying beyond it.”96 Text is paramount—“only the words on the page constitute the law”97—and if those words lead to “unexpected consequences,” so be it.98
Settled practices matter not, nor does the “unanimous consensus” among the courts of appeals stretching across a half-century.99 As the Court put it: “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”100 In the Bostock majority‘s view, language codified by lawmakers is like language coded by programmers. A computer programmer may write faulty code, but the code will perform precisely as written, regardless of what the programmer anticipated. Courts, no less than computers, are bound by what was typed, and also by what was mistyped. What this means for Title VII: “When a new application emerges that is both unexpected and important,” said the Court, it is no answer to “have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.”101 We are bound by Bostock, whose ascetic interpretive rules for Civil Rights Act cases apply with equal force to Voting Rights Act cases.
Judge Costa‘s opinion asserts virtually the same arguments as the Bostock dissenters, appealing to “venerable” understandings, “widely accepted meaning,” and “uniform caselaw.”102 He labels the State‘s
In any event, there is another elephant, this one in the room, and it is not hiding. The voting-rights litigation landscape was transformed by the Supreme Court‘s 2013 decision in Shelby County. Any newness to the State‘s
Immediately, scholars exhorted courts to give section 2 “special bite,” such that “section 2 can be made to function like erstwhile section 5 in the post-Shelby County world.”114 The goal: “that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court‘s evisceration of section 5.”115 All to say, any novelty to Mississippi‘s three-judge argument tracks the relative novelty of a section 2-only challenge, “as Voting Rights Act claims and constitutional claims are usually asserted together,”116 thus requiring a three-judge court.117
Today‘s question, fundamentally, is about jurisdiction—the very power of federal courts. And “past practice does not, by itself, create power.”118 The power of Article III courts to hear cases is derived from statutes that Congress enacts. And we must give those statutes their fairest reading, regardless of how litigants have (or have not) tried their cases up to now, and regardless of what may be more socially desirable as a policy matter. Judicial duty requires us to revere, not revise, what Congress has passed.
V
Verbis legis tenaciter inhaerendum.
“Hold tight to the words of the law.” This medieval legal maxim, fittingly the lead epigraph to Reading Law,119 captures the paramount task of judges when interpreting legal texts: giving enacted language its soundest, most honest meaning. In this case, the language of
Requiring only a single judge to decide section 2-only challenges may be wise policy, but it is not Congress‘s enacted policy. While it is a plausible reading of the statute, it is not the most plausible. The most sure-fire reading of
We have endeavored to give
ANDREW S. OLDHAM, Circuit Judge, concurring:
It appears that the only thing left in this case is Plaintiffs’ application for attorney‘s fees. “Of course, a claim for attorney‘s fees is not alone sufficient to preserve a live controversy.” N.Y. State Rifle & Pistol Ass‘n, Inc. v. City of New York, 140 S. Ct. 1525, 1538 (2020) (Alito, J., dissenting) (citing Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 480 (1990)). So I agree that the case is moot. I write separately to explain why our Munsingwear vacatur also moots Plaintiffs’ fee application.
I.
The effect of a Munsingwear vacatur is fairly well-known: It “eliminates [the] judgment” below. United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950). What‘s less appreciated is why.
Think of federal litigation like baseball. In baseball, a team wins nothing by scoring the most runs in the first inning. Rather, we declare the winner after nine. See Major League Baseball, Official Baseball Rules, R. 7.01(a) (2018). Sometimes, uncontrollable circumstances—bad weather or a legal curfew, for example—bring play to a halt and require calling the game early. Id. R. 7.02(a). If, at the time the game is called, “five innings have [not] been completed,” id. R.7.01(c), the umpire declares “No Game,” id. R. 7.01(e). Neither team wins. Id. R. 1.06. As far as the League is concerned, it‘s as if the game never happened at all.
Litigation is functionally identical. When a party secures a contested judgment in the district court, it has a lead. But it hasn‘t won anything yet. It must first protect its lead—the judgment—in the court of appeals. If certiorari is granted, the party must protect it again before the Supreme Court. But if, “through happenstance,” the case becomes moot before the Supreme Court can review it, Munsingwear, 340 U.S. at 40, the umpire declares “No Game.” Inferior-court decisions, like the first innings of baseball games, are “only preliminary.” Ibid. So they must be vacated and “prevent[ed] . . . from spawning any legal consequences.” Id. at 41.
Of course, not all cases make their way to the Supreme Court. But many do reach ours. And we too have a “duty . . . to set aside the decree below” when “the controversy has become entirely moot” before we can issue a decision. Great W. Sugar Co. v. Nelson, 442 U.S. 92, 93 (1979) (per curiam) (quotation omitted). Again, a first-inning lead is no victory.
And with no victory, a plaintiff cannot demand “prevailing party” fees. For example, the Supreme Court has told us that, when a plaintiff wins a preliminary injunction but ends up losing the case on the merits, the plaintiff doesn‘t get prevailing-party fees. See Sole v. Wyner, 551 U.S. 74, 78 (2007). Why? Because, “at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded.” Ibid.
II.
Plaintiffs in this case secured a first-inning lead: judgment in the district court. But, through no fault of either party, the game was called early without review by our court. So, despite Plaintiffs’ preliminary success, today‘s Munsingwear vacatur means they leave the courthouse emptyhanded. We‘ve “strip[ped] the decision below of its binding effect.” Deakins v. Monaghan, 484 U.S. 193, 200 (1988).
This spells an end to Plaintiffs’ fee application. Plaintiffs told the district court they would ask for “prevailing party” fees. See Unopposed Motion for Extension of Time to Apply for Attorneys’ Fees & Costs, Thomas v. Bryant, No. 18-cv-441, Doc. 94 (S.D. Miss. Mar. 12, 2019).1 But a plaintiff cannot demand prevailing party fees without, well, having prevailed.
Plaintiffs in this case “prevailed” no more than the plaintiff in Sole. Plaintiffs in both cases enjoyed the benefit of the district courts’ decisions for a time. But, just as a loss at the end of a case terminates the benefit of temporary injunctive relief, see Sole, 551 U.S. at 84–86, so too does a vacatur take away whatever benefits were held by the winning party in the district court. Plaintiffs in both cases had only a “transient victory.” Id. at 78. Plaintiffs in both cases had that “transient victory” stripped of its legal effect. And plaintiffs in neither case can demand prevailing party fees. See N.Y. State Rifle & Pistol Ass‘n, 140 S. Ct. at 1538 (Alito, J., dissenting) (noting that a successful [civil-rights] plaintiff “is eligible for attorney‘s fees,” but “dismissing the case as moot means [plaintiffs] are stuck with the attorney‘s fees they incurred“); S-1 v. State Bd. Of Educ. of N.C., 21 F.3d 49, 51 (4th Cir. 1994) (en banc) (per curiam) (“[T]he dismissal on appeal of an action . . . as moot operates to vacate the judgment below, and prevents the plaintiffs from being found prevailing parties by virtue of post-dismissal events.” (quotation omitted)).
Before the Supreme Court‘s decision in Sole, we misunderstood the rules of the game. We said, for example, “that a determination of mootness neither precludes nor is precluded by an award of attorneys’ fees. The attorneys’ fees question turns instead on a wholly independent consideration: whether plaintiff is a ‘prevailing party.‘” Murphy v. Fort Worth Indep. Sch. Dist., 334 F.3d 470, 471 (5th Cir. 2003) (per curiam) (quotation omitted). Obviously, the Supreme Court has now told us that‘s wrong: Plaintiffs’ prevailing-party status is wholly dependent on whether they walk out the courthouse doors with an enforceable judgment. See Sole, 551 U.S. at 78; Farrar v. Hobby, 506 U.S. 103, 113 (1992) (“No material alteration of the legal relationship between the parties occurs until the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant.“); cf. Staley v. Harris Cty., 485 F.3d 305, 314 (5th Cir. 2007) (en banc) (holding plaintiff can be a prevailing party where we refuse to order Munsingwear vacatur and plaintiff kept its judgment). Our Munsingwear vacatur deprives Plaintiffs of such a judgment. With that understanding, I concur.