Early Reflections on the Roberts Court and Legislative History

The Roberts Court undoubtedly still is in its infancy when it comes to matters of statutory interpretation. Despite this shortage of extrapolation-material, I think it possible to hazard a few speculations about emerging trends in the fledgling Court’s statutory interpretation methodology. At least as concerns legislative history —an ever-fertile ground for debate amongst judges and academics— I note three emerging camps among the Justices:

1.Stevens, Breyer, Ginsburg: Legislative History is relevant to help clarify statutory meaning in the first instance, because it provides context and can illuminate Congress’ intent and purpose in enacting the words at issue.

Evidence: In Hamdan v. Rumsfeld , a case that involved §1005(e)(1) of the Detainee Treatment Act (DTA), these three Justices were willing to rely in part on the fact that when Congress passed the DTA, it specifically considered and rejected a proposal to bar Supreme Court review of habeas applications from aliens detained at Guantanamo Bay that were pending at the time the statute was enacted. (The DTA clearly bars Supreme Court review of habeas applications filed after the date the statute takes effect, and the key question was whether that bar applied to an application filed by Hamdan before the statute was enacted).

Similarly, in Zuni Public School District No. 89 v. Dep’t of Education, these three Justices looked to and relied on the facts that (1) the Secretary of Education drafted the statutory language at issue and promulgated the challenged regulations (and calculation method for per-pupil expenditures) immediately thereafter; and (2) the challenged regulations had been in effect for 30 years prior to this challenge, during which time Congress never objected to the Secretary’s regulations or calculation method. (In other words, the Justices relied on the identity of the drafter and on post-enactment congressional silence).

2. Scalia (roping in/often joined by Thomas and thus far the Chief Justice): Legislative history is an unreliable and manipulable tool often used to effect Justices’ preferred policy outcomes. (But note that Scalia incongruously joined the majority opinion in the pre-Roberts-Court case of FDA v. Brown & Williamson Tobacco Corp., which relied heavily on Congress’ post-enactment behavior as evidence that Congress did not intend to give the FDA authority to regulate tobacco under the Food, Drug, & Cosmetics Act (FDCA)). Justice Thomas is not quite the ardent textualist that Justice Scalia is, but he has tended to join in Scalia’s ardently textualist opinions; Chief Justice Roberts likewise seems textually-inclined and disinclined to rely on a statute’s legislative history.

Evidence: In Hamdan, Justice Thomas joined Justice Scalia’s opinion reading the text of the DTA clearly to bar all courts from exercising jurisdiction over all habeas applications by Guantanamo detainees, irrespective of when the applications were filed — and taking the majority to task for resorting to the “unreliable” rejected proposal rule. (Chief Justice Roberts did not participate in the case). Likewise, in Zuni, Justices Roberts and Thomas joined Justice Scalia’s scathing opinion insisting that the text of the Federal Impact Aid Act clearly, unambiguously precludes the regulation and calculation method envisioned by the Secretary of Education when he drafted the statutory language in 1976, and criticizing the majority for using legislative history to trump the statute’s plain text. (Caveat: Justices Thomas and Roberts do not seem to share Justice Scalia’s utter loathing for legislative history, in that they have not gone so far as to dissent from any part of an otherwise unanimous opinion merely because the opinion cites a statute’s legislative history as being consistent with the interpretation dictated by the text. See, e.g., Kircher v. Putnam Funds Trust (unanimous opinion, Scalia refusing to join Part II); Warren v. Maine Board of Env’tl Protection (unanimous opinion; Scalia refusing to join Part III)).

3. Souter, Kennedy, Alito: These three Justices, perhaps surprisingly, so far have taken a middle approach to the use of legislative history in statutory interpretation — agreeing that such history is relevant and helpful, but only if the statute is unclear. If the statute’s meaning is clear, then in their view no amount of contrary legislative history can trump that clear meaning.

Evidence: In Zuni, Justice Souter agreed with the majority about Congress’ probable intent to allow the Secretary of Education to continue using the challenged calculation method, but concluded that the statutory text so clearly dictated a different method (and precluded the method used by the Secretary) as to render the legislative history unavailing and to require the Court to invalidate the Secretary’s regulations. In Hamdan, by contrast, Justice Souter found that the text at issue plainly preserved Supreme Court jurisdiction over pending cases, and was willing to consider legislative history that backed up textual arguments in favor of this reading.

Justices Kennedy and Alito, conversely, found the text in Zuni to be ambiguous, and thus were willing to consider evidence of the drafter’s intent and of post-regulation congressional silence to determine that Congress intended to allow the Secretary to use the challenged calculation method. (But they wrote separately, in a concurrence, to underscore that the crucial first question must be “Is the text clear?” and that legislative history should only be considered if the text is not clear — and to criticize the majority opinion for beginning with an analysis of the legislative history).

In Hamdan, Justice Kennedy, like Justice Souter, was persuaded that the text supported the Court’s jurisdiction over Hamdan’s case and was willing to consider legislative history supporting that interpretation. Justice Alito, by contrast, construed the text as plainly removing Supreme Court jurisdiction over all habeas petitions by Guantanamo Bay detainees, no matter when they were filed, and so refused to consider the rejected proposal legislative history cited by the majority.

What emerges from this miniature dissection are a few tentative principles: (1) Six of the nine Justices are willing to consider legislative history; three are willing to do so in every statutory interpretation case to help divine the statute’s meaning in the first instance, while three are willing to do so only if they believe the text to be ambiguous or if the legislative history is used merely to back up a textual argument they find convincing; and (2) the unlikely trio of Souter, Kennedy, and Alito are the Court’s swing Justices with respect to reliance on legislative history. Any party or advocate possessing persuasive or “smoking gun” legislative history will have to convince at least two of these three Justices that such legislative history is consistent with the statute’s plain meaning or that it clarifies an otherwise ambiguous statutory provision in order to get these “swing” Justices to rely on that history.

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6 Responses

  1. “Scalia (roping in/often joined by Thomas and thus far the Chief Justice)”

    …anyone who uses the term “roping in” in relation to Justice Thomas (and the Chief Justice) is obviously watching this Court with a pre-determined viewpoint shaped by rather tired and discredited stereoytpes.

    (…and can you imagine the liberal/progressive fury unleashed – esp. in this era of noose-sensitivity – if someone wrote that Justice Brennan had previously “roped in” Justice Marshall on some of their predictable tandem votes?)

  2. MD lawyer says:

    I read “roping in/often joined by” to mean that Justice Scalia is the most vocal of the three in his categorical rejection of the use of legislative history in construing statutes, not to mean that the others are lesser intellects or somehow less independent in their decisionmaking processes.

    I doubt that there would be any “fury unleashed” if someone wrote that Justice Brennan had “roped in” Justice Marshall in a tandem vote. Justice Brennan was known to act strategically in trying to get the votes of other Justices, and “roped in” wouldn’t be an inappropriate description of what he did in at least some cases.

    Finally, the “noose-sensitivity” thing is more than a little farfetched, particularly when you’re talking about persuasion among Supreme Court Justices who have largely similar political views.

    Prof. Krishnakumar, thanks for this post. I’ve often thought that the Supreme Court sends out mixed signals on the rightful place of legislative history in statutory interpretation, as Justices Scalia, Stevens and Breyer have each been able to write majority opinions in statutory interpretation cases, even though the former’s views are diametrically opposed to the latter two. This post seems to provide a compelling answer.

  3. Anita S. Krishnakumar says:

    Whoa! Hold the combative fire! I certainly don’t mean to suggest that Justice Scalia was tricking anybody into joining his opinions — that’s silly. All I meant was that I don’t think (and this is my speculation) that Justices Thomas and Roberts share the utter frustration that Justice Scalia expresses with the majority’s use of legislative history (that’s all that the post, and what comes after the parenthetical you’re objecting to, is talking about) in his Hamdan and Zuni dissents, even though they joined those opinions on the merits.

  4. Bruce Boyden says:

    MC, the evidence Anita cites above for the “roping in” claim is that Roberts and Thomas signed on to 2 Scalia opinions rejecting legislative history, but seem unwilling to join him in other cases in objecting to legislative history on principle. Meanwhile, when Thomas and Roberts write independently, they don’t seem to have the same level of antipathy toward legislative history. I.e., Scalia’s successfully getting votes on this issue, but it seems to be taking a little persuasion.

    How is that even remotely a claim based on negative stereotypes? I think you may have approached this blog post with a pre-determined viewpoint shaped by discussions you have read elsewhere.

  5. Trevor Morrison says:

    It’s true “the Roberts Court” is in its relative infancy, but seven of the nine members of that Court are nowhere near the infancy of their time on the Court. What’s the theory under which it makes sense, when figuring out those seven Justices’ approaches to legislative history, to look only (or even principally) at what they have done since Robert and Alito have arrived? Is the idea that they might have taken the arrival of a new Chief Justice as an opportunity to turn over a new interpretive leaf? That seems a little implausible.

    So, e.g., I think an attempt to figure out where Souter stands on legislative history would benefit greatly from looking at a number of pre-Roberts Court cases, including cases like Crosby v. National Foreign Trade Council (2000), where his majority opinion made considerable use of legislative history and Scalia (joined by Thomas) concurred only in the judgment to express disagrement with that use(stressing in particular that the statute was so plain that resort to legislative history was unnecessary).

  6. Anita S. Krishnakumar says:

    I agree that an analysis of the seven long-serving Justices’ doctrinal leanings would benefit from looking at additional, pre-Roberts-Court cases (although I do think that shifting Court dynamics have some effect on the Justices’ methodologies) — but that’s a project beyond the scope and length of this blog post. In my next law review article, perhaps!

    Also, I’m probably not as familiar with the case as you are, but it’s my sense that Crosby is not so much a statutory interpretation case (asking “what do certain words or phrases in this statute mean?”), in which plain meaning of the text arguably could end the inquiry, as a Supremacy Clause preemption case (which asks the different question “does the state law undermine the intended purpose or effect of the federal statute (is there field or conflict preemption)?” and more openly invites judicial inquiry into the legislative history of the federal statute in order to illuminate its purpose and intended reach).