The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some conservative commentators have expressed dismay over the Chief Justice's opinion in King v. Burwell because it goes beyond the plain text of the statute and looks at context to try to further the intent of Congress. There is a healthy debate over whether that is the proper approach to statutory interpretation, and I don't want to weigh in on that debate here. But I did want to flag what Chief Justice Roberts said about interpreting statutes during his 2005 confirmation hearings. As I read his 2005 statement, the Burwell opinion matches up pretty well with it.
Here's the context. Senator Grassley asked Roberts to describe his approach to statutory interpretation, and in particular to weigh in on Justice Scalia's refusal to consider legislative history. Roberts gave this answer, with my emphasis added:
Obviously, when you're dealing with interpreting a statute, the most important part is the text. You begin with the text, and as the Supreme Court has said in many cases, perhaps most cases, that's also where you end—the answer is clear.
I have, though, as a judge, relied on legislative history to help clarify ambiguity in the text. The Supreme Court stated once, and I think it's a very important principle, you look to legislative history to clarify ambiguity. You don't look to legislative history to create ambiguity.
In other words, if the text is clear, that is what you follow and that's binding. And you don't look beyond it to say, well, if you look here, though, maybe this clear word should be interpreted a different way.
On the other hand, we confront situations where the text is not clear and the legislative history can be helpful in resolving that ambiguity. It requires a certain sensitivity to what you're dealing with. All legislative history is not created equal.
There's a difference between the weight that you give a conference report and the weight you give a statement of one legislator on the floor. You have to, I think, have some degree of sensitivity in understanding exactly what you're looking at; appreciate where those comments were made in the legislative process; be careful to make sure that they're dealing with the same language that was eventually adopted.
You have to, for example, be very skeptical about statements by opponents of the bill. It's quite a common thing saying, well, this bill would do this and this and this, and so we shouldn't pass it. That's not always the best guide as to what the sponsors really intended in the language.
So it does require a certain sensitivity to what you're dealing with, but I have quoted and looked to legislative history in the past to help determine the meaning of ambiguous terms, and I would expect to follow that same approach on the Supreme Court.
I don't think there's a difference there in terms of what things you think it is appropriate to look to, help you do your job, which is to figure out what Congress intended.
What Roberts said in 2005 strikes me as pretty much what he did in Burwell. He started with text, which he ultimately found ambiguous. He then turned to the broader structure and goals of Congress in enacting the law, concluding that "[i]t is implausible that Congress meant the Act to operate in th[e] manner" that the challengers claimed.
There was was no conference report for the ACA to guide him, so for the equivalent of such legislative history he relies on the structure of the statute to identify its goals. By parsing the statute, he tries to figure out what (in the words he used in 2005) "the sponsors really intended in the language." He concludes in Burwell:
A fair reading of legislation demands a fair understanding of the legislative plan.
Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.
I don't have a view of whether Roberts was right about his statutory interpretation, as I long ago decided to remain rationally ignorant about the merits of Burwell. And whether Roberts is right to focus on legislative intent rather than text alone is a separate debate beyond this post. But it seems worth noting that his approach to statutory interpretation in Burwell appears consistent with what he said he would do during his confirmation hearings.