What Could Explain Why Supreme Court Justices Are ‘Somehow’ Following the Law?

By Dan McLaughlin

Wednesday, January 25, 2023

 

It would be difficult to more effectively parody Mark Joseph Stern of Slate and his approach toward the Supreme Court and the rule of written law than he himself does, with yesterday’s column on the first full opinion of the current Supreme Court term. The Court’s unanimous opinion in Arellano v. McDonough upheld the decision of the Department of Veterans Affairs to grant veterans’ benefits to a Navy veteran for psychiatric disabilities, but not retroactively. Thus, the veteran was awarded benefits from 2011 forward, rather than starting at the date of his discharge in 1981, because he waited 30 years to file for them after leaving the Navy.

 

This is an entirely unremarkable application of the law that was written by Congress. That is the simple and obvious explanation for why the Court was unanimous. First, the law says that the effective date for veterans’ benefits “shall not be earlier than the date of receipt of application therefor” (emphasis added). “Shall not” is as unambiguous as it gets in law-writing: You get benefits as of the day you apply for the benefits. Did Congress heartlessly write an inflexible rule with no exceptions? Or did it leave things open-ended and invite the courts to craft their own rules out of their own sense of justice?

 

On both counts, quite explicitly not. The statute says that the date-of-application rule applies “unless specifically provided otherwise in this chapter” (emphasis added). So according to what the statute says, only the specific exceptions written by Congress are available. And Congress wrote 16 separate exceptions, one of which states that an application received within a year of discharge will be retroactive to the date of discharge. It does not say 30 years.

 

The argument raised by the lawyers for the Navy veteran, Adolfo Arellano, was that the courts should nonetheless extend the one-year window in that exception into an essentially permanent retroactive-claims period so long as the veteran asserted that he was too mentally ill to learn about his right to claim benefits. The legal theory for this would be “equitable tolling,” a doctrine that in various contexts extends the statutes of limitations for filing lawsuits when it would be unfair to expect someone to file on time. Common examples include when a person takes time to discover that they have been defrauded, or when they can’t serve papers on a fugitive, or when the plaintiff is serving overseas in a war or is a child not old enough to sue. In federal law, there is a general presumption in favor of equitable tolling in statutes of limitation, and it can apply when Congress just writes a simple deadline without explanation (as often happens). But the Court has held repeatedly in the past that equitable tolling doesn’t apply when Congress provides a detailed statutory scheme that suggests it doesn’t expect judges to go writing a bunch of additional rules.

 

There was some debate in Arellano about whether the one-year exception in this case was actually a statute of limitations entitled to the presumption. After all, it imposes no time limit on filing for benefits (just on having them awarded retroactively), and the claimant would be asking for an equitable ruling from an administrative agency officer, not a judge. The Court didn’t need to reach that question because it concluded that a time limit with 16 different exceptions, where “many of the specific exceptions reflect equitable considerations,” such as where the filing is made by the child of a veteran, was designed to be the complete list of rules for determining the effective date of a benefits award. “That Congress accounted for equitable factors in setting effective dates strongly suggests that it did not expect an adjudicator to add a broader range of equitable factors to the mix.” Justice Amy Coney Barrett’s opinion for the Court noted that Congress allowed more than 13 months of retroactive benefits in one, and only one, of the specified situations: the death of an active-duty servicemember. That suggests a congressional policy choice to treat this one situation differently from the others.

 

But it’s a Barrett opinion, so Stern has to be outraged in order to keep up the pretense that everything Barrett writes or does is illegitimate. He doesn’t dig very far into his thesaurus to marshal his rage. On Twitter, he describes it as “a harsh and deeply unfair result.” His column refers, in its subtitle, to “Justice Amy Coney Barrett’s harsh opinion,” and in its text to “Barrett’s harsh opinion,” which applied a “harsh deadline.” “It’s a painful blow to military members who were injured while serving their country, and a puzzling one,” Stern says, adding that the Court imposed an “exceedingly stringent deadline” by applying a “stringent interpretation of the law” by means of “a wooden analysis of the ‘statutory scheme.’”

 

Stern insists on using quotes around the Court’s reference to the actual law written by Congress, as if it is somehow improper to consider a whole statute in order to decide what it means — even though that is what the precedents in this area counsel, and even though some of the most liberal decisions in memory (e.g., King v. Burwell) have rested heavily on exactly that argument in order to conclude that words in a statute had the opposite meaning from what they said. Indeed, the Biden administration prevailed on the basis of a purpose-of-the-statutory-scheme argument just last term in one of the vaccine-mandate cases. In fact, the one lower-court opinion that accepted Arellano’s argument for equitable tolling concluded that “the statutory scheme” should “help[] inform the scope of equitable tolling on the ground of mental disability” and cited a provision in the separate rules written by Congress for veterans’ disability pensions.

 

Of course, the only thing “harsh” in Barrett’s opinion is where she acknowledges that “hard and fast limits on retroactive benefits can create harsh results.” Barrett notes that sympathy for veterans might lead the Court to lean in their favor if the law was less clear, but that in our system of government, Congress ultimately has the right to write the laws: “Congress could have designed a scheme that allowed adjudicators to maximize fairness in every case. But Congress has the power to choose between rules, which prioritize efficiency and predictability, and standards, which prioritize optimal results in individual cases. Congress opted for rules in this statutory scheme.”

 

This is the fundamental flaw in Stern’s approach: He treats with incredulity the idea that Congress might get the last word in writing the laws. Even then, I suspect that if Democrats were writing rules on this today and a Republican suggested leaving them to the best judgment of the Supreme Court, Stern would not take the same view.

 

Stern insists that the Court’s actually following the law as written is such a baffling and horrifying phenomenon that we must assume that the Court’s liberals could not have meant to join it. The opinion “somehow won unanimous support from the justices.” Or there’s deep strategy at work: “Perhaps the three-justice minority is so outnumbered that it has decided to pick its battles, and Arellano was not worth the fight.” (Does that sound like Justice Sonia Sotomayor to you?) Or the liberals are overworked: “It’s also possible that the term is filled with so many contentious cases already that no justice wanted to eat up her time writing a dissent in a relatively minor case when the outcome was inevitable anyway.”

 

Two things go unmentioned by Stern. One is that, prior to Arellano’s case, this was already the law; only because the judges of the Federal Circuit were divided over whether to overturn their own precedent against equitable tolling did the case even reach the Supreme Court. It took only two days after the anniversary of Roe v. Wade and all the left-wing odes to the sanctity of precedent for Stern to be on the ramparts furious that precedent wasn’t overturned here.

 

Two: Every single judge who reviewed Arellano’s claim for retroactive benefits rejected it. He lost before the VA regional office. He lost before the Board of Veterans Appeals. He lost before the Court of Appeals for Veterans Claims. He lost before the en banc Federal Circuit. Even the Federal Circuit judges who wanted to overturn their own precedents and introduce an equitable tolling rule still thought Arellano’s case didn’t qualify. Judge Timothy Dyk (a Bill Clinton appointee who clerked for Earl Warren) noted that, even though Arellano was too mentally incapacitated to file a claim, he had been cared for by his brother since 1981, and VA rules would allow his un-disabled brother to file a claim:

 

There is no allegation that Mr. Lamar [Arellano’s brother] was somehow prevented from filing, or faced obstacles in his attempt to file, Mr. Arellano’s request for benefits sooner. . . . There is nothing in the record that justifies the inordinate thirty-year delay in filing the application at issue. . . . Because Mr. Arellano had a caregiver who could have filed (and indeed did later file) an application on Mr. Arellano’s behalf, and no special circumstances are alleged, equitable tolling on the ground of Mr. Arellano’s mental disability is not warranted, especially for such an untimely filing.

 

Not a very harsh outcome at all. Indeed, because veterans with profound mental disabilities are likely to have a caregiver, there are not that many cases in which an equitable tolling rule would change the outcome; Judge Dyk himself wrote that “it would be only the rare case where a mentally disabled veteran with a caregiver would be entitled to equitably toll” the effective date.

 

It is true that people with mental-health problems face unique obstacles to obtaining government benefits precisely because they are either too mentally dysfunctional to understand the rules or because their illness makes them unwilling to admit that they are unwell. But considerations such as the responsibility of a caregiver or legal guardian, the length of a delay, and the need for some degree of administrative efficiency — consider that this case still took eleven years to resolve from the filing date — are precisely why the rules are written by a democratic legislature, to be applied by an administrative agency experienced in this precise area. Congress has undoubted constitutional power to design the system of benefits for veterans of the nation’s military, and it has been dealing with the manifold issues presented by disabled veterans since the Revolutionary War. If the idea that the Supreme Court might let Congress write the rules is surprising or inexplicable to you, writing about the courts might not be for you — unless you’re writing for Slate.