Here is a simple test of logic:

         The Federal Rule says, “If a party satisfies condition ‘A’ then they are entitled
to relief ’B’, unless otherwise provided”.

         An applicable statute says that if a party satisfies condition “C”, then they qualify for “B” on that basis.

         The facts of the case are that the party satisfies condition “A,” but not condition “C”.

         Is the party entitled to receive relief “B”?

This is the fact pattern in Marx v.General Revenue Corp., (No. 11-1175), decided by the U.S. Supreme Court on February 26, 2013.  Voting 7-2, the Court granted relief “B” (consisting of an award of costs), holding that “otherwise provided” means “’contrary’ to the [Federal] Rule.”  In other words, the statute must countermand the Federal Rule if it is deemed to replace it; the Rule is unaffected by a code provision that merely establishes an additional pre-condition triggering relief.  Who would have guessed?

         If you had attempted to predict the majority opinion based on classical rules of statutory construction, you would have failed. You would have been wrong not because the commonly accepted interpretive tools did not apply but because they were applied in such an unconventional way.

         The decision adopted the unusual definition of the word, “otherwise,” as meaning “contrary.”  The Court avoided the “plain meaning” rule by asserting that the contrary of something is the only cognizable permutation of “otherwise provided”.

         Then, the Court found a reason why each of the regular techniques for squaring rules with statutes did not apply.  The Court chose to disregard the Latin phrase, inclusio unius exclusio alterius, which means, “inclusion of one excludes others,” for the reason that redundancy throughout the U.S. Code is “hardly unusual”.   Next, it skirted the “surplussage” rule that favors ascribing meaning to each word and phrase of legislation, by announcing that something may be repeated for emphasis and not to provide any substantive contribution.

         Okay, so the majority re-defined a commonly recognized term and found exceptions to usual and customary techniques for interpreting laws.  Why would they do that?  Are there any non-traditional decision-making criteria that could result in a corporation defeating an individual; and both dissenters, Justices Sotomayor and Kagan, being Obama appointees?