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Legislative history lives on – in secret
Clear Statements is a recurring series by Abbe R. Gluck on civil litigation and the modern regulatory and statutory state.
Rumors of the textualist triumph over legislative history have been greatly exaggerated.
A debate has raged among lawyers and judges for decades about the changes the Supreme Court’s textualists have wrought in statutory interpretation. One of textualism’s key moves has been to argue that congressional intent is inscrutable in a 535-member body and so congressional materials – especially legislative history, such as floor statements and committee reports from the enactment process – should not be considered, instead of an approach focused only on the words actually enacted. Critics have responded that interpreting statutory text divorced from the purpose or history of a statute’s enactment actually enlarges, not cabins, judicial discretion and does not give sufficient respect to Congress’ collective intentions or work-product.
But recent cases suggest the pendulum may be secretly swinging back. Whether the justices want to admit it or not, the court today is paying attention to legislative history and what it reveals about statutory purposes. And the “secretly” is the most intriguing part.
My phone was ablaze about two weeks ago with reports from a Federalist Society panel at the University of Pennsylvania examining Justice Samuel Alito’s statutory interpretation jurisprudence. Even though Alito is a self-proclaimed textualist, he has never fully eschewed legislative history. He looked to legislative history often when he was on the U.S. Court of Appeals for the 3rd Circuit and remains the most explicit user of congressional materials among the court’s most committed textualists. Indeed, one of his best known dissents, his 2020 opinion in Bostock v. Clayton County, in which the court considered whether Title VII of the Civil Rights Act applies to sexual-orientation discrimination, chastised his fellow textualists for “ignor[ing] … congressional intent and legislative history.”
The discussion of Alito’s approach, however, opened the door to a much more interesting revelation. One panelist, U.S. Court of Appeals for the D.C. Circuit Judge Gregory Katsas, himself a textualist, not only stated that it can be helpful when construing a statute to understand the circumstances that gave rise to it – in other words the statute’s general purpose, although the “p” word was never uttered – but he also noted that legislative history can be very helpful to understanding those circumstances.
But next came the kicker: Katsas referred to a recent dissent he authored concerning the January 6 attack on the Capitol. He admitted that he himself wanted to reference the circumstances that gave rise to one of the governing statutes, a financial corruption law that came out of the Enron scandal but was being used to prosecute the assailants. Rather than cite the act’s legislative history directly, however, Katsas explained that he chose instead to cite a Supreme Court case, which itself announced the act’s purpose only after consulting its legislative history. Specifically, Katsas stated that, although “most of the briefs and stuff cited the legislative history,” he decided not to do so “because I didn’t want to create a side show of, you know, conservative Fed Soc judge in this edgy case cites legislative history.” So instead he cited a page in Yates v United States – an opinion written by liberal purposivist Justice Ruth Bader Ginsburg, which itself relies directly on the act’s legislative history to discern its purpose.
After telling this story, Katsas jokingly said that he “got away with it.” One of Katsas’ co-panelists joked back: “we were all fooled!”
Indeed, when the same case, Fischer v. United States, eventually reached the Supreme Court, Justice Ketanji Brown Jackson concurred specifically to object to the majority’s failure to look to legislative purpose. She cited both Yates and, then expressly, the legislative history that case relied on and that Katsas had admittedly laundered in.
There are a lot of things to say about the panel on Alito, including what seemed to be some general acceptance of his more open approach to legislative history. That in and of itself shows a moderating trend with respect to that tool, even by conservative textualists. Former Judge Richard Posner and I demonstrated previously that many federal appellate judges long viewed exclusionary approaches to legislative history such as Justice Antonin Scalia’s as too extreme, and find limited use of legislative history appropriate. Some textualist judges have recently started advocating for a new “contextualism” – a theory that emphasizes more inputs, sometimes including purposes and consequences as well as the text. It remains to be seen whether explicit legislative history references will increase as that approach develops.
But what about the laundering? The reluctance to say that consulting statutory purpose is helpful and citing instead an old precedent that itself cites legislative history – that’s the really interesting part. It is also something that I’ve been tracking for some time. As it turns out, Katsas is far from alone. Indeed, most of the current textualist justices themselves routinely launder legislative history through precedent.
Court-watchers should care about this phenomenon for several reasons. First, as noted, lawyers briefing cases should know these materials still have sway. The court actually utilizes the concept of legislative purpose frequently, as my own research reveals, and legislative history, even if not explicitly cited in opinions, remains an important ingredient in the excavation of a statute’s goals and motivating circumstances. Second, if you are an administrative-law aficionado transitioning to a post-Chevron world, you are probably trying to get your arms around the court’s general statutory interpretation approach, since agency interpretations are now treated just like ordinary statutory interpretations. So, you need to understand that the textualist revolution, despite appearances, is not 100% complete.
Consider a few examples. Quarles v. United States concerned the definition of burglary under the Armed Career Criminal Act. There, Justice Brett Kavanaugh did not cite directly to legislative history even as he discussed at some length Congress’ intentions in defining the crime. Instead, he quoted another case which expressly relied on legislative history for a statement of statutory purpose. According to Kavanaugh, “[a]s the Court recognized in Taylor, Congress ‘singled out burglary’ because of its ‘inherent potential for harm to persons.’” But Taylor relied extensively on legislative history, including hearing transcripts and committee reports, to conclude: “The legislative history also indicates that Congress singled out burglary … for inclusion as a predicate offense.”
Or take the recent case of Wisconsin Bell, Inc. v. United States ex rel. Heath, where Justice Clarence Thomas concurred to discuss the scope of the False Claims Act and placed significant reliance on the purpose and goals of that act. He noted that “[w]e have said that the purpose of the FCA was ‘to provide for restitution to the government of money taken from it by fraud,’” citing United States ex rel. Marcus v. Hess, a 1943 case that itself relied on legislative history for its purposive conclusions, and also quoting United States v. McNinch for the proposition that “Congress enacted the FCA because it ‘wanted to stop th[e] plundering of the public treasury.’” McNinch, decided back in 1958, relied on testimony before Congress, citing the House and Senate reports, and concluded that “the language of that Act, read as a whole in the light of normal usage, and the available legislative history . . . le[a]d[s] to the conclusion that an application for credit insurance does not fairly come within the scope that Congress intended the Act to have.”
There are numerous additional examples. Just one more will suffice.
In ZF Automotive US, Inc. v. Luxshare, a case involving the construction of a discovery statute, Justice Amy Coney Barrett relied on a 2004 opinion authored by Justice Ginsburg, Intel Corp. v. Advanced Micro Devices, Inc., to describe the effect of an earlier amendment to the provision under consideration. She wrote: “As we have previously observed, that shift created ‘the possibility of U. S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad.” The quote from Ginsburg’s Intel opinion was a direct quote from a Senate report. But that Senate report wasn’t cited in Barrett’s opinion.
Ultimately, their laundering of legislative history reveals that the court’s modern textualists are still caught in in some methodological cross hairs. I have previously written on SCOTUSblog about various other ways in which the court’s textualists are now split over the tools they employ to interpret statutes. An earlier post concerned divides over certain policy presumptions, known as canons of interpretation. But legislative history has an even longer pedigree and a recent history of coming under more aggressive attack. In other words, today’s justices are grappling with what it means to be a textualist court.
As part of that examination, some justices, including the justices already discussed in this post, have claimed at times to care more about “ordinary meaning” than how Congress understands the statutes it enacts. Barrett has argued most emphatically against any approach that favors the congressional perspective. This is despite the fact that Congress has been the traditional referent in statutory interpretation cases for more than a century – judges, as Barrett herself has acknowledged, have claimed since the dawn of the statutory era that their duty is to interpret statutes as “faithful agent[s] to the legislature.” So this shift away from Congress, which I have detailed elsewhere, is a big deal. But the secretive use of legislative history tells a different story. It reveals that the current court is trying to look away from Congress with one eye but can’t help looking back at it with another. Even ordinary-meaning textualists at least recognize in the dark that Congress – and the purposes and history behind statutes – are important to a legitimate interpretation.
Deeper discussion of the ordinary meaning approach must await a different post. (Although let’s face it, it’s a fiction: ordinary people do not read federal statutes, and federal statutes are not narrative documents that are easily understandable even if someone tried to pick them up. An ordinary-meaning approach thus ultimately may give more power to judges to decide meaning for themselves.) But the continued, albeit subtle, reliance on legislative history and congressional purposes reveals a court which understands, on some level, that statutory interpretation without reference to Congress just doesn’t make much sense.
Thank you, Judge Katsas, for cracking the door open just little bit.
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