The U.S. Supreme Court resolved more textual battles today, one in a fully argued case, the other on procedural motions.

The combinations of Justices continue to defy stereotypes, and at least one of those combinations, led by the Chief Justice, constitutes a majority that is willing to stand up to presidential assertions of expansive powers.

Bufkin v. Collins involved the application by the Department of Veterans Affairs (VA) of the so-called “benefit of the doubt” rule, a kind of “tie goes to the runner” rule that “tips the scales in a veteran’s favor when evidence regarding any issue material to a service-related disability claim is in ‘approximate balance.’” 38 U. S. C. §5107(b).

The petitioners in the case are veterans who applied for disability benefits related to their service-connected post-traumatic stress disorder. The VA found no clear link between the claimed condition and the veterans’ military service. These adverse determinations were reviewed de novo by the Board of Veterans Appeals (the “Board”), which rendered final decisions on behalf of the VA denying the claims. The veterans then challenged these adverse determinations before the U.S. Court of Appeals for Veterans Claims (the “Veterans Court”). The Veterans Court is charged with reviewing legal issues de novo and factual issues for clear error. In doing so, the Veterans Court must “take due account” of the VA’s application of the benefit-of-the-doubt rule.

Here, the Veterans Court affirmed the VA’s adverse benefit determinations, finding that the Board’s approximate-balance determinations were not clearly erroneous. On further appeal, the U.S. Court of Appeals for the Federal Circuit rejected the veterans’ argument that the statutory command to “take due account” of the VA’s application of the benefit-of-the-doubt rule requires the Veterans Court to review the entire record de novo and decide for itself whether the evidence is in approximate balance.

Writing for a 7–2 majority affirming the Federal Circuit, Justice Thomas opined that the VA’s determination that the evidence regarding a service-related disability claim is in “approximate balance” is a predominantly factual determination reviewed only for clear error. According to Justice Thomas and the six Justices who joined him, “[r]eviewing a determination whether record evidence is approximately balanced is ‘about as factual sounding’ as any question gets.”

An interesting feature of the case is not just that the dissent is longer than the lengthy majority opinion but that it was written by Justice Jackson and joined by Justice Gorsuch. Jackson suggested, not without the force of considerable reason, that “[n]othing about the text, context, or drafting history” of the provision at issue “demonstrates that ‘take due account’ actually means ‘proceed as normal.’”

The Trump administration suffered a significant loss in Department of State v. AIDS Vaccine Advocacy Coalition, in which the Court voted 5–4—with the Chief Justice and Justice Barrett joining the Court's three jurisprudential liberals—to deny the president's emergency application to lift a lower court order to pay nearly $2 billion to contractors in foreign aid funds for already-completed work.

Though there is no substantial record in the case and the majority’s order is contained in a single paragraph, the outcome demonstrates that the Chief Justice is an institutionalist first and foremost and, as I have been suggesting recently, so is Justice Barrett. Together with the liberals, particularly Justice Kagan, there is a functional majority that is willing to exert judicial power over a president whose wide-ranging executive orders would greatly extend the power of his office.

A caveat: It ain’t over till it’s over. Litigation in this matter will continue in the lower courts, so the case could come back to the Court in the future. At that point, we'll see whether the division among the Justices persists. Joined in dissent by Justices Thomas, Gorsuch, and Kavanaugh, Justice Alito vehemently posited the rhetorical question: 

Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned. 

We are sure that Justice Alito will find his bearings. As he does, will the Court's majority continue to stand up to the executive? We shall soon see.