The Supreme Court recently handed down a unanimous 8-0 decision by Justice Ginsburg in Abbott v. United States on a criminal sentencing issue. On remand following a GVR, the Sixth Circuit applied Abbott but two judges, Boyce Martin and Gilbert Merritt, just had to let the Justices how wrong they were. Their joint concurring opinion reads in relevant part:
The Supreme Court has now decided that the phrase “any other provision of law” has a meaning exactly opposite to the ordinary meaning of the words. This mode of interpretation was sometimes followed in the early days of the Common Law in the time of Edward I and II in the 13th and 14th Centuries when the judges would sometimes correct the legislative language and reverse the meaning of a statute under a doctrine of interpretation called “The Equity of the Statute.” . . . In this case, a unanimous Supreme Court engaged in a similar instance of 13th Century “originalism” by interpreting the “equity” of a statute to mean just the opposite of what the words say because the Court believed it knew the intended meaning of the statute.
. . . [A]pparently the rule of lenity based on ambiguous language does not operate when the court resorts to the “Equity of the Statute” to give it a construction opposite to the meaning the words ordinarily signify because the Court knows that what the legislature intended was not what it wrote. Nothing is mentioned about an ex post facto problem when a statute is interpreted contrary to its words. The Supreme Court is “final but not infallible” and we must follow their interpretation of statutes. The “Equity of the Statute” doctrine is alive and well — although unmentioned by the Supreme Court — more than seven centuries after its origin at common law.
Now that’s chutzpah.
Thanks to How Appealing for the link.