“Commentary: In Pair of Opinions, Fight Over Textualism Lives On; When Justice Kagan declared at a 2015 “Scalia Lecture” at Harvard Law School that ‘we are all textualists now,’ she may have been a bit premature.”

I have written this oped for the National Law Journal. It begins:

The battle over Justice Antonin Scalia’s approach to interpreting federal statutes shows no signs of abating even two years after his death, as a pair of opinions issued Wednesday by Justice Sonia Sotomayor, a concurring opinion by Justice Clarence Thomas and a surprising concurring vote of Justice Samuel Alito show.

Scalia’s most lasting influence on the Supreme Court is likely to be “textualism,” an approach to deciding the meaning of statutes by relying upon the words of the statutory text as a reader at the time of the statute’s enactment would have understood them. Scalia would frequently turn to dictionary or “canons” of construction (rules of thumb for deciding cases, such as interpreting criminal law statutes leniently to help defendants) as an aid to construction. What he would almost never do is consult legislative history (such as the statement of a senator on the floor of the Senate or a House of Representatives committee report accompanying legislation) to understand the statute’s meaning. He thought such legislative history was unreliable, manipulable and not the law passed by Congress….

Sotomayor took up the cause of anti-textualism Wednesday in a concurring opinion in Digital Realty Trust v. Somers, a case concerning a technical provision of the 2010 Dodd-Frank anti-corporate fraud statute protecting whistleblowers. All nine justices on the high court agreed with the result reached by Justice Ruth Bader Ginsburg’s majority opinion on the meaning of the whistleblower provision. Ginsburg’s majority opinion relied not only on the words in the statute but also a Senate report explaining its meaning.

Justice Clarence Thomas, joined by Justices Alito and Neil Gorsuch, issued a separate opinion agreeing with the parts of Ginsburg’s opinion using the textualist approach, but rejected any reliance on the Senate report or legislative history. Thomas wrote, quoting in part Scalia, that “Even assuming a majority of Congress read the Senate Report, agreed with it, and voted for Dodd-Frank with the same intent, ‘we are a government of laws, not of men, and are governed by what Congress enacted rather than by what it intended.’”

Especially interesting was Alito’s agreement to sign on to the Thomas concurrence. While Gorsuch is a professed textualist, Alito has been willing to look at legislative history, which dismayed Scalia. Perhaps the passage of time has turned Alito into more of a textualist.

The short Thomas concurrence prompted a response from Sotomayor, who argued for the relevance of legislative history in understanding the meaning of a statute in context. She relied upon Second Circuit Chief Judge Robert Katzmann’s excellent rejoinder to Scalia, his 2014 book, “Judging Statutes,” as well as the work of professors Abbe Gluck and Lisa Schultz Bressman, showing that congressional staffers viewed committee reports as the most reliable type of legislative history. Sotomayor wrote that “legislative history can be particularly helpful when a statute is ambiguous or deals with especially complex matters. But even when, as here, a statute’s meaning can clearly be discerned from its text, consulting reliable legislative history can still be useful, as it enables us to corroborate and fortify our understanding of the text.”

Despite Sotomayor’s valiant defense of more holistic statutory interpretation, she did not mention a bit of legislative history in her unanimous opinion for the court Wednesday in Rubin v. Islamic Republic of IranRubin concerned whether the Foreign Sovereign Immunities Act of 1976 prevented a plaintiff, who held a judgment against Iran for assisting in terrorist act, from obtaining Iranian artifacts held at the University of Chicago to satisfy the judgment. The unanimous court held that the FSIA gave Iran immunity from this attempt to satisfy the judgment….

Despite the fact that all of the Supreme Court merits briefs in Rubin, as well as an amicus brief of the United States, cited the legislative history of the FSIA—including a floor statement of Sen. Frank Lautenberg, D-NJ—Sotomayor’s opinion did not mention legislative history at all.

 

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