Early Reflections on the Roberts Court and Legislative History
posted by Anita Krishnakumar
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.