The Volokh Conspiracy
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As some commentators have noted, one of the Supreme Court's opinions released last week features an interesting debate on whether courts should consult congressional reports and other forms of legislative history to help determined the meaning of or legislative intent behind a particular statutory provision.
In Digital Realty Trust, Inc. v. Somers, Justice Ruth Bader Ginsburg wrote the opinion for the Court concluding that the whistleblower-protection provisions of the Dodd-Frank Act do not apply to individuals who do not report alleged securities law vioaltions to the Securities and Exechange Commission. The Court was unanimous in reaching this judgment, but was not unanimous about how to get there.
Justice Clarence Thomas objected to Justice Ginsburg's reliance upon legislative history to support the Court's conclusion. In an opinion concurring-in-part and concurring-in-the-judgment, joined by Justices Samuel Alito and Neil Gorsuch, he wrote:
I join the Court's opinion only to the extent it relies on the text of the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd–Frank). The question in this case is whether the term "whistleblower" in Dodd–Frank's antiretaliation provision, includes a person who does not report information to the Securities and Exchange Commission. The answer is in the definitions section of the statute, which states that the term "whistleblower" means a person who provides "information relating to a violation of the securities laws to the Commission." As the Court observes, this statutory definition "resolves the question before us." The Court goes on, however, to discuss the supposed "purpose" of the statute, which it primarily derives from a single Senate Report. 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." And "it would be a strange canon of statutory construction that would require Congress to state in committee reports … that which is obvious on the face of a statute." For these reasons, I am unable to join the portions of the Court's opinion that venture beyond the statutory text. [Citations omitted.]
In a footnote, Justice Thomas cites a famous Senate colloquy from 1982 suggesting that a committee report is not a "particularly reliable source" for determining congressional intent.
Mr. ARMSTRONG. Mr. President, will the Senator tell me whether or not he wrote the committee report?
Mr. DOLE. Did I write the committee report?
Mr. ARMSTRONG. Yes.
Mr. DOLE. No; the Senator from Kansas did not write the committee report.
Mr. ARMSTRONG. Did any Senator write the committee report?
Mr. DOLE. I have to check.
Mr. ARMSTRONG. Does the Senator know of any Senator who wrote the committee report?
Mr. DOLE. I might be able to identify one, but I would have to search. I was here all during the time it was written, I might say, and worked carefully with the staff as they worked….
Mr. ARMSTRONG. Mr. President, has the Senator from Kansas, the chairman of the Finance Committee, read the committee report in its entirety?
Mr. DOLE. I am working on it. It is not a bestseller, but I am working on it.
Mr. ARMSTRONG. Mr. President, did members of the Finance Committee vote on the committee report?
Mr. DOLE. No.
Mr. ARMSTRONG…. The report itself is not considered by the Committee on Finance. It was not subject to amendment by the Committee on Finance. It is not subject to amendment now by the Senate…. If there were matter within this report which was disagreed to by the Senator from Colorado or even by a majority of all Senators, there would be no way for us to change the report. I could not offer an amendment tonight to amend the committee report…. [L]et me just make the point that this is not the law, it was not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.
The Thomas opinion prompted a response from Justice Sonia Sotomayor, which was joined by Justice Stephen Breyer, defending the idea that a Senate Report is "an appropriate source for this Court to consider when interpreting a statute."
Committee reports, like the Senate Report the Court discusses here, are a particularly reliable source to which we can look to ensure our fidelity to Congress' intended meaning. Bills presented to Congress for consideration are generally accompanied by a committee report. Such reports are typically circulated at least two days before a bill is to be considered on the floor and provide Members of Congress and their staffs with information about "a bill's context, purposes, policy implications, and details," along with information on its supporters and opponents. These materials "have long been important means of informing the whole chamber about proposed legislation," a point Members themselves have emphasized over the years. It is thus no surprise that legislative staffers view committee and conference reports as the most reliable type of legislative history.
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. Moreover, confirming our construction of a statute by considering reliable legislative history shows respect for and promotes comity with a coequal branch of Government.
For these reasons, I do not think it wise for judges to close their eyes to reliable legislative history—and the realities of how Members of Congress create and enact laws—when it is available. [Citations omitted.]
For whatever it is worth, last fall, during oral argument in Artis v. District of Columbia, Justice Sotomayor said she looks "at statutory history, not legislative history"—taking pains to distinguish the two. Judging from her latest opinion, she looks at "legislative history" too.