Justice Neil Gorsuch, the man occupying Merrick Garland’s seat on the Supreme Court, has authored a ruling for the 5-4 conservative majority on a prisoner rights case that so tortures the English language that reading it should be considered “cruel and unusual punishment.”
The case, Murphy v. Smith, concerns Charles Murphy, an inmate beaten by guard Bob Smith and neglected by Lt. Greg Fulk. His eye socket was crushed and despite all best medical efforts, his vision is permanently impaired.
Charles sued Bob and Greg for violating his rights under the 8th Amendment, figuring that torture-happy cops who blind people is a bit cruel and unusual as punishments go. A jury finds in his favor and awards him about $400,000 in damages, although the District Court lowers that to about $300,000. His court-appointed attorney is awarded about $100,000 as well.
Back in the “tough on crime” 1990s, Bill Clinton signed into law the Prison Litigation Reform Act. Much of it was intended to thwart prisoners’ ability to file lawsuits, but one provision is the key to the assault on plain English carried out by Gorsuch – 42 U.S. Code § 1997e(d)(2):
Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
Charles won $300,000 in damages and his attorney is owed $100,000. The court decides that the portion of Charles’ $300,000 that he has to pay to cover the attorney’s award shall be 10 percent, or $30,000. He then gets to keep $270,000 for having his vision permanently altered by Bob and Greg.
Better yet, that “excess [$70,000 owed the attorney] shall be paid by the defendant[s],” Bob and Greg.
Bob and Greg don’t like this, so they appeal. They argue that Congress writing “a portion of the judgment (not to exceed 25 percent)” means that Charles’ “portion” must attempt to pay the entire $100,000 owed the attorney, up to 25 percent of Charles’ award.
Surprisingly, the Seventh Circuit Court of Appeals agreed with Bob and Greg and admittedly disagreed with other Courts of Appeal that have argued this point.
Now Charles has to pay out not $30,000, but $75,000 of his award to pay his attorney, knocking $45,000 off of Bob’s and Greg’s debt.
To justify the idea that “a portion of the judgment (not to exceed 25 percent)” means “25 percent,” Justice Gorsuch wrote:
Does the first sentence allow the district court discretion to take any amount it wishes from the plaintiff’s judgment to pay the attorney, from 25% down to a penny? Or does the first sentence instead mean that the court must pay the attorney’s entire fee award from the plaintiff’s judgment until it reaches the 25% cap and only then turn to the defendant?
Gorsuch believes that the courts have no say in the matter and must take 25 percent of the plaintiff’s award, and justifies that belief by arguing that when you seek to satisfy a financial obligation, “that usually means you intend to discharge the obligation in full.”
Justice Sotomayor wrote the dissenting opinion, which takes Gorsuch to task on such a narrow interpretation, by observing that “the statutory provision here does not simply say ‘to satisfy’; it says ‘applied to satisfy.'” She then provides three relevant examples of people applying to satisfy various obligations:
A consumer makes a payment on her credit card, which her agreement with the card company provides shall be “applied to satisfy” her debt. A student enrolls in a particular type of math class, the credits from which her university registrar earlier announced shall be “applied to satisfy” the requirements of a physics degree. And a law firm associate contributes hours to a pro bono matter that her firm has provided may be “applied to satisfy” the firm’s overall billable-hours requirement. In each case, pursuant to the relevant agreement, the payment, credits, and hours are applied toward the satisfaction of a larger obligation, but the inference is not that the consumer, student, or associate had to contribute or even necessarily did contribute the maximum possible credit card payment, classroom credits, or hours toward the fulfillment of those obligations.
Gorsuch also tries to back up his argument by noting that Congress could have chosen different phrasing if it didn’t want the law to require a 25 percent payback, like writing that the portion “may” be applied instead of “shall,” or that the portion would be used “to reduce” instead of “to satisfy.”
Sotomayor uses that exact argument against Gorsuch to great effect by arguing that “Congress also easily could have written … ‘Twenty-five percent of the plaintiff’s judgment shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.'”
Gorsuch even tries to delegitimize the word “portion” as a variable measurement, like a pinch or a handful. He cites the example of a recipe that might call for double the portion of sugar required, where one would know exactly what the portion is, which is like saying 2x is not a variable if you know that x equals one cup. He even cites the word “portion” used in the defining geographic boundaries of the National Elk Refuge, which, again, tells you “portion” isn’t vague if you define it.
Sotomayor slams Gorsuch’s word games in a footnote:
Of course, “portion” can gain a more determinate meaning by its surrounding context, as the majority’s examples illustrate. But §1997e(d)(2) is not like the recipe that quantifies the initial portion of sugar to be doubled or the statutory provision that describes with geographic precision the lands to be made part of the National Elk Refuge. “[T]o satisfy” simply instructs that some portion of the prisoner-plaintiff’s judgment “not to exceed 25 percent” be applied toward the satisfaction of the fee award.
These kinds of interpretations illustrate why it is so crucial to take seriously the appointment of judges and justices to our courts. Sonya Sotomayor and three justices think the law says the court decides how much of a prisoner’s award, up to 25 percent, can be appropriated to pay his attorney. Neil Gorsuch and four justices think prisoners are on the hook to pay all their attorney’s expenses, up to a 25 percent limit of their award.
And it all comes down to debates concerning “shall” vs. “may” and the meanings of “portion” and “to satisfy.” If you want to know why Mitch McConnell was so desperate to keep Merrick Garland off the Supreme Court, this case is just one example.
Looking at the record number of conservative appointments Trump is making to the lower federal courts is all the justification Evangelicals need to turn a blind eye toward pussy grabbing and porn star payoffs.
If only progressives in 2016 had such single-minded judicial fervor and long-term thinking, Sotomayor might be writing for the majority. But, as you know, Hillary Clinton was the embodiment of evil whose secret email server something something something.