[This post has been revised; see my note at the bottom.]
The post before this one, dealing with the dueling canons in Lockhart v. United States, was my first after a gap of more than two years. In my last post before that gap, I wrote about an amicus brief I had just filed in the Supreme Court in Nassar v. University of Texas Southwestern Medical Center. The brief dealt with the meaning of the construction because of X. Specifically, it dealt with whether that construction incorporates the notion of but-for causation as part of its meaning. My brief argued that it does not.
The Supreme Court had previously reached the opposite conclusion, in a case involving the Age Discrimination in Employment Act: Gross v. FBL Financial Services. In Nassar, the question was whether the holding in Gross should be extended to a different statute that similarly used the formulation because of X. I argued that the Court should not follow Gross because Gross had been wrong about what because means. Some might regard such an argument as quixotic; I preferred to think of it as audacious.
The core of my argument was based on real-world sentences like Example (1) (emphasis added):
(1) The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.
The sentence gives two reasons for the Constitution’s abhorrence of classifications based on race, and it expresses the causal relationships between the reasons and the abhorrence by using the word because: “not only because…but also because….” Yet each of the reasons by itself would presumably have been sufficient to explain the Constitution’s antipathy to racial classifications; as a result, neither reason was itself the but-for cause of that antipathy. If it were true that the use of the word because entails but-for causation, the sentence would be anomalous. If the idea of but-for causation is inherent in what because means, it wouldn’t make sense to say that something happened not only because of but-for Cause 1, but also because of but-for Cause 2. After all, part of what it means to say that because entails but-for causation is that the word would not be used in regard to situations where such cause does not exist. But the sentence in (1) uses because in exactly such a situation. Which indicates that contrary to what the Supreme Court held in Gross and later in Nassar, because does necessarily express but-for causation.
Further evidence for that conclusion is provided by (2)-(5) below (emphasis added), each of which is similar to (1) in using the word because in situations in which but-for causation was absent (because each of the two causes referred to was itself a sufficient cause):
(2) This Court rejected that proposition, not only because it did not regard Francis as a new rule, but also because the state court did not “plac[e] any limit on the issues that it will entertain in collateral proceedings.”
(3) As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto.
(4) We do not know anything about [Juror Z’s] demeanor, in part because a transcript cannot fully reflect that information but also because the defense did not object to Juror Z’s removal.
(5) Fitzgerald repeatedly emphasized in her briefs and at argument that she was entitled to [final] benefits not just because of the extensive delay, but also because of her indigency and the merits of her case.
Now, examples (1)-(5) were not made up for purposes of illustrating my point. Rather, each sentence represents an actual use of the word because in a real-world document. In fact, you have heard of the people who wrote these sentences. They are as follows, with numbering that corresponds to the numbering of the sentences:
(1) Supreme Court Justice Thomas, who wrote the majority opinion in Gross, stating that because necessarily expresses but-for causation. (Link, p *353.)
(2) Chief Justice Roberts, who joined in the decisions in Gross. (Link, p. *298.)
(3) Justice Scalia, who joined in the decision in Gross. (Link, p. *2742.)
(4) Justice Kennedy, who joined in the decision in Gross. (Link, pp. *1229.)
(5) Justice Alito, who joined in the decision in Gross. (Link, p. * 235.)
So, you see, every member of the majority in Gross—every single one of them—had used the word because in a way that proved the holding in Gross to be wrong. And those weren’t the only time they had done so. Nor are they the only people who have used because to express non-but-for causation. In my brief I provided dozens of additional real-world examples of such uses.
Given this evidence, the argument that Gross was wrong seemed to me (and still seems) to be a slam-dunk. And while I’m obviously biased, I’m usually pretty good at seeing any weaknesses lurking in the arguments I make. (If you think I’m wrong, please submit a comment that explains why you think that.) But despite my confidence in the brief, it went over like a lead balloon.
By a 5-4 vote, the Court followed Gross, once again declaring that using because expresses but-for causation. That in itself wasn’t all that surprising—I always knew that in asking the Court to reject Gross I was swimming upstream—but I thought that the brief would, like the linguistics-based briefs I’d previously filed, attract the attention of at least some of the justices. But no. At oral argument nobody asked any questions about the meaning of because. The majority opinion didn’t deal with the issue. Nor was it addressed in the dissent.
I was obviously disappointed at having my arguments go unnoticed, but that’s very much a First World Problem. What’s more consequential is the fact that the Gross/Nassar interpretation of because will almost certainly become the prevailing interpretation of the word in U.S. law.
It has already been followed in cases decided under different statutes, and it will undoubtedly continue to be applied to other statutes. That is a near certainty in the federal courts, where Gross and Nassar will probably be regarded as binding precedent on what because means. And although state courts will be free to interpret the word differently when applying state law, most of them will probably follow the federal-law precedent. At some point a case will come up where the but-for interpretation makes no sense, or leads to a terrible result, and it will be interesting to see what happens then.
In any event, the question whether the interpretation should be given precedential effect is an interesting one. On the one hand, decisions by the Supreme Court on questions of federal law are binding on all U.S. courts, and since the Supreme Court’s interpretation of because arose in the course of interpreting federal statutes, it is easy to treat it as a legal question and therefore within the scope of the Court’s law-declaring authority.
On the other hand, even if the issue is treated as a question of law, it is also—unavoidably and inherently—a question of fact. The potential meanings of a word are determined by how the word is used by speakers of the language. That is a bottom-up process that is not especially susceptible to control by social/political institutions such as the courts. The Supreme Court’s declaration of what because means will have no effect how the word is used by the hundreds of millions of people who speak English as their native language. Those people are the real adjudicators of what the word means, and they will go on using it just as they have before, subject only to the ordinary forces of language change. The word because will probably be used billions of times every day, and in untold millions of those instances, the word will be used in ways providing further evidence that the Supreme Court got it wrong.
Given those circumstances, it is odd to think that courts in the United States would have to forever disregard reality.
Note: I realized after this was posted that a sentence in the first paragraph after the jump contained two non-s that shouldn’t have been there. I’ve therefore edited the sentence as follows: “If the idea of but-for causation is inherent in what because means, it wouldn’t make sense to say that something happened not only because of
non-but-for Cause 1, but also because of non-but-for Cause 2.” I’ve also made some nonsubstantive edits elsewhere in the post.