Justices Thomas and Sotomayor Debate Legislative History

Are Committee Reports and other legislative documents helpful guides to legislative intent?

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.

Comments

[Liberaltarian]

I'm pretty sure Dole's answers to any but the last question would not change if "bill" were substituted for "committee report."

[bernard11]

Like.

[y81]

Exactly. That particular colloquy proves too much, as my tax professor used to say.

[jph12]

How so? I don't think a congressperson's opinion on what the enacted law means is particularly relevant to the judicial interpretation of the law, so whether he's read it doesn't really matter because it doesn't really matter what they think it says.

[Soronel Haetir]

Is it Senate style for senators to refer to themselves in the third person? I find it particularly odd to use a third person address that does not necessarily individually identify someone (after all, there are two senators from Kansas, even if there was likely only one present for the quoted exchange).

[bernard11]

Bernard11 finds it silly and pompous.

What does Soronel Haetir think?

[Sharper]

Yes. In situations where there may be confusion about which Senator from a State, the custom is to style one the "Junior Senator from Kansas" or the "Senior Senator from Kansas", using primarily their tenure in the Senate (not their age) and a few other factors as the reference point. See also wikipedia on seniority for the tiebreakers.

[loveconstitution1789]

The courts need to decide if the law itself is constitutional based on what Congress or state legislatures write up as the law.

There are far too many judges that try and determine the intent of legislators or what the law should be to remain constitutional. Strike down more laws if they are vague or overly broad, don't make sense, or are unconstitutional in some other way.

[bernard11]

But this was not a matter of constitutional interpretation.

[SimonP]

The debate over legislative history is a quaint one, relevant to academics and judges perhaps, but pointless for any practitioner.

I mean, sure - Thomas can snipe over citing language no Senator has ever voted on or had the ability to amend. But then Thomas isn't hearing every possible dispute over the statutory language or struggling to apply it in the infinite variety of circumstances where the statute could be implicated. Meanwhile, the people and institutions subject to the law must pick their own way through the law, with little more than an archipelago of caselaw and regulations to help guide the way.

I am myself advising clients currently on two different points of law where virtually no caselaw or regulatory development exists. Am I supposed to ignore the congressional record, as well, if it might provide some helpful guidance? Do my clients much care for the philosophical debates engaged in by academics and jurists? No, surely - they do not. So I can advise them of the lack of clarity and rely on the record with qualification, but no, I do not have the luxury of not scraping for every last bit of guidance I have on minute points of law that the judiciary has never reviewed. Thomas's casting doubt on the practice is little more than unhelpfully obfuscatory.

[Sharper]

If the statute is poorly defined enough to be open to differing interpretations on a point which must be interpreted, then you might use legislative history to figure out what the people who voted on it meant at the time, but when the statute literally contains a clear and specific definition of the word within it's own text, it's a waste to think anything else should be relevant as to what it means.

Can you think of a situation where it would be legitimate for a judge to decide a word in a statute didn't mean what it was specifically defined to mean in the statute based something the judge found in the legislative history? If not, then why bother with it?

[Allutz]

Why would that be the resolution instead of the simpler and better answer: Void for vagueness

[bernard11]

Because it is unrealistic to expect lawmakers to anticipate every possible circumstance in which a statute might be applicable, and because "void for vagueness" is itself a judicial determination about which judges will disagree. It would hardly be surprising to find two judges who both think a statute is absolutely clear, but disagree as to what it means.

Besides, throwing out a statute is itself making a decision in a case.

[Scarecrow Repair & Chippering]

I would think that the very fact judges disagree on whether a statute is vague is proof of its vagueness.

I also think any non-unanimous appeals ruling ought to be proof of vagueness and toss out the laws / facts in dispute.

But then IANAL.

[MatthewSlyfield]

Perhaps judges ought to simply stop prosecutors and civil plaintiffs from trying to apply statutes in circumstances not anticipated by the legislature.

[Krayt]

I recall an early anti-terrorism law under Clinton, where the government swore it was only needed for terrorism and would never, ever be used for normal crimes. Emergency temporary powers and all that.

It wss immediately used for drug crimes. They didn't even bother with the sophistry that drugs are akin to terrorism. When questioned about it by the press, they claimed so what, the law doesn't specify terrorism only.

Fortunately, this is the only known example in human history of politicians and police using laws in ways it was not intended, bypassing democratic concepts and intent, so we're safe.

[Dilan Esper]

Allutz, you have to remember that lawyers are trying to advise clients.

So when you have an ambiguous statute, you can't tell the client that "it will be struck down for vagueness". It's very hard to get a statute struck down for vagueness. Courts don't like forcing the legislature to do something over again, especially complex statutes that took a long time to pass and which deal with important problems.

So you have to advise the client what a court might interpret the statute to mean. And legislative history provides a clue. It helps us give that advice.

Look, I actually think that Thomas (and Scalia, before he died) has a point about legislative history. I've SEEN self-serving committee reports. That stuff happens.

But I've also seen committee reports where I have read them and the light bulb went on in my head-- "so THAT'S what that provision is addressed at!". It depends on what is being said, how much sense it makes in context, and how likely it is to be self-serving. All things intelligent judges (and Sotomayor is highly intelligent) should be able to adjudicate.

[Allutz]

I am saying that void for vagueness should be the default more often for judges rather than saving constructions, etc.

In addition, one thing I notice that people who like to rely on legislative history never end up citing is the floor debates where people scoff at a parade of horribles, but then one of those horribles is actually the case at hand (or similar). If, for instance, you read actual floor debates on the Civil Rights act, many of the things that have happened under Title IX were explicitly promised to not happen by proponents of the CRA. We, of course, know the same has consistently happened with the PPACA. But the acolytes of legislative history never get around to that in those cases.

[Dilan Esper]

1. Making void for vagueness common violates a fundamental principle of government- legal rules are supposed to help the government function, not prevent it from functioning. It sometimes takes years to get bills through Congress. So you cannot have rules that strike down statutes willy nilly.

2. Usually, parades of horribles on the Senate floor concern broad provisions where the object is known. That usually isn't where legislative history is most useful. You tend to use legislative history to interpret more obscure provisions.

[DRM]

Hmm? It's only useful as guidance to the practitioner insofar as the practitioner expects the courts/regulators to use it as guidance in their rulings. If the courts/regulators make their rulings independently of the legislative history, the legislative history cannot accurately guide you to what they will rule.

[Al Sappwood]

It will help you churn the bill of a hapless client, though.

[David Nieporent]

I am myself advising clients currently on two different points of law where virtually no caselaw or regulatory development exists. Am I supposed to ignore the congressional record, as well, if it might provide some helpful guidance?

Your question confuses the different roles here. If some judges rely on that language, then you need to look at it in order to provide advice to your clients as to how courts might ultimately interpret it. But a judge is not a counsellor, he's a judge. He doesn't have to speculate about how he'll interpret it; he decides how he'll interpret it. If the judge says, "No, I don't care what the congressional record says," then that's that; it provides no guidance for you or your clients as far as he's concerned. It's not a mere philosophical debate for him; it's a practical decision.

[Al Sappwood]

>Do my clients much care for the philosophical debates engaged in by academics and jurists? No, surely - they do not.

They might care that you're billing them for time spent researching "guidance" that very few courts would consider persuasive or relevant.

[bernard11]

"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."

OK, but that's not really an argument against using the reports and other sources when something is not "obvious on the face of a statute."

I guess if all statutes were crystal clear and covered all contingencies these things would not be needed. Even though IANAL I have had occasion to try to puzzle out what a statute meant a time or two.

Guess what. They are often not models of clarity.

[Sharper]

You're correct in general, some things aren't obvious from the statute, but in this specific case, it was obvious and clear. It was literally written into a definition in the statute. No ambiguity at all, the words are right there in the text. It doesn't get any clearer.

[bernard11]

Indeed it was clear. And Ginsburg's opinion makes very that point often and explicitly.

From her opinion:

"When a statute includes an explicit definition, we must
follow that definition," even if it varies from a term's
ordinary meaning. Burgess v. United States, 553 U. S.
124, 130 (2008) (internal quotation marks omitted). This
principle resolves the question before us.

She repeatedly provides arguments supporting the use of the statute's definition in deciding the case.

Sotomayor's point is not that she disagrees with that in this instance. She makes a broader point 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.

Thomas, OTOH, seems to be merely having a small temper tantrum.

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

OK. That's what it does. Maybe he doesn't like the fact that Ginsburg goes on a bit in refuting the plaintiff's arguments, but there is nothing there that involves any sort of tea-reading.

[David Nieporent]

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.

But that's nonsensical. If the statute's meaning can clearly be discerned from its text, then the legislative history cannot be useful. The court can hold that the statute means X or not; it can't hold that it fortifiedly or corroboratedly (yes, I made up those words) means X. The legislative history can add nothing whatsoever in such a context, which is the opposite of useful.

Consulting reliable legislative history can only be useful if the text is ambiguous.

But Thomas's point is that there's no such thing as "reliable legislative history." A committee report can never tell you what the legislature meant.

[bernard11]

Is there any value in having an opinion be "fortified" by legislative history? Sure, it wouldn't affect the ruling, and Sotomayor says so, except for those whose first impulse is to ascribe bad faith to her. But it might strengthen the argument, might it not?

Why do judges write opinions at all, rather than just saying, "the plaintiff wins," and leaving it at that? My lay understanding is that the purpose is to explain the basis for the decision, to add legitimacy. If citing legislative history helps to make the decision more convincing or understandable, I don't see the problem.

[MatthewSlyfield]

"But it might strengthen the argument, might it not?"

In a case where the statutory text in unambiguous? No.

[Sarcastr0]

Unambiguity is sometimes ambiguous!

[Krayt]

It depends on what your definition of "is" is.

[jph12]

"Is there any value in having an opinion be "fortified" by legislative history?"

No.

"But it might strengthen the argument, might it not?"

No.

[David Nieporent]

Why do judges write opinions at all, rather than just saying, "the plaintiff wins," and leaving it at that? My lay understanding is that the purpose is to explain the basis for the decision, to add legitimacy. If citing legislative history helps to make the decision more convincing or understandable, I don't see the problem.

That superficially sounds valid. But here's the problem: if legislative history provides valid information to be looked at in interpreting a statute, then one can't cabin its use only to situations when the legislative history supports the interpretation one already prefers. So what happens when the text of the statute is clear and unambiguous (as it is here), but the legislative history doesn't fortify/corroborate that interpretation, but instead undermines/contradicts it?

[Sarcastr0]

Why can't one cabin it's use to when history aligns to the unambiguous text?

My decade-old recall of my legislative interpretation class brings to mind a Scalia case (about calendar dates IIRC) where he does exactly this, discussing how in the absence of an absurd result there is no need to consult legislative history when the text is unambiguous, but then goes on and looks at the legislative history anyhow. I don't recall if it was a committee report or not.

But I am all in with your general point that this is an issue that is superficially easy but isn't is exactly the issue here. This seemingly simple issue actually gets to the roles of the legislature, judiciary, and public in our system.
Each side believes their paradigm is too correct to bother looking at how their analysis holds up under another.

[bernard11]

What is your idea as to why judges issue lengthy opinions, rather than just one-sentence decisions?

if legislative history provides valid information to be looked at in interpreting a statute, then one can't cabin its use only to situations when the legislative history supports the interpretation one already prefers.

I don't quite get your point here. Are you talking about a statute which is ambiguous, but where you have a preferred interpretation? Then you seem to be saying that a judge who wants to use legislative history ought to be willing to go against his own preferences if the history suggests that. It's hard to disagree with that.

So what happens when the text of the statute is clear and unambiguous (as it is here), but the legislative history doesn't fortify/corroborate that interpretation, but instead undermines/contradicts it?

Then you go with the statute. Using the history is a fallback when the statute is unclear.

[David Nieporent]

Then you go with the statute. Using the history is a fallback when the statute is unclear.

You miss the point. Here's a case where the statute was clear, but they went to the history anyway.

Now posit a scenario like this one -- a clear statute -- except that the legislative history points the other way. Either the legislative history provides valuable insight into what Congress meant or it doesn't. If it doesn't provide such insight, then Sotomayor shouldn't have been citing it. If it does provide such insight, then you can't discount it just because you don't like what it says.

[Stephen Lathrop]

David, you sound persuasive. I'm close to being persuaded. But down the path you argue lives a species of extreme legal positivism which goes wrong in instances where?ambiguity or no?history ought to trump legal reasoning every time. For instance, with regard to constitutional interpretation.

Lawyers argue all the time that systems of legal interpretation provide guidance with regard to constitutional meanings. But historically, every jot and tittle of such systems has to be held subordinate to the Constitution itself?which developed in a specific historical context absolutely unconstrained by any system at all. A constitution is a decree which an all-powerful sovereign makes at pleasure. If there were power to constrain that decree?such as constraint by some system of law?that would-be sovereign would not be sovereign in fact, and the proposed constitution would founder.

Of course, that leaves open the possibility that lawyers of your mind may suppose that, really, the U.S. Constitution was constrained?by English law for instance?and that lawyers and judges have been the real sovereigns all along. I can see why you might think that. Among lawyers and judges you would be in plentiful company if you did.

[bernard11]

David,

I read the opinion differently. They did not "go to the history" to come to a decision.

Read Ginsburg's opinion. She was very clear that the language of the statute ruled. She discussed the history to refute the plaintiff's claims that the history supported his case, and, frankly, as a general discussion of the statute.

But in no sense did the history determine the ruling, or, apparently, her own thinking on the matter.

Once again, she wrote,

"When a statute includes an explicit definition, we must
follow that definition," even if it varies from a term's
ordinary meaning. Burgess v. United States, 553 U. S.
124, 130 (2008) (internal quotation marks omitted). This
principle resolves the question before us.

What could be clearer?

[MatthewSlyfield]

"So what happens when the text of the statute is clear and unambiguous (as it is here), but the legislative history doesn't fortify/corroborate that interpretation, but instead undermines/contradicts it?"

The text of the statute rules and if Congress doesn't like that, they know how to fix it.

[phattyboombatty]

The problem with Sotomayor's approach is that if she had looked at the legislative history, and everything in the legislative history showed that the legislators intended something different than what was contained in the definition section, the Court should still apply the statute as written--not as intended to be written. So, what the hell is gained by confirming that the legislative history lines up with the clear language of the statute? All she has done is possibly fool law students into believing that legislative history makes a difference in this type of case.

[Allutz]

Sotomayor being inconsistent? I am SHOCKED. Shocked I say.

[Sarcastr0]

Sotomayor is hardly my favorite Justice, but I think you're letting your policy concerns author your personal opinion of someone you don't know.
Procedural inconsistency is hardly extraordinary for a Justice, especially in the weeds like this.

[Allutz]

Statutory interpretation is not the weeds. Either you use legislative history or not. And to be quite blunt, Sotomayor is a great target to mock. When compared against her contemporary Kagan, she looks like an ant, and a clownish ant at that.

[Bob from Ohio]

Not very wise of her I'd say.

[Sebastian Cremmington]

This is foreshadowing the travel ban.

[Sarcastr0]

For that, it would need moar Kennedy.

[DjDiverDan]

"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."

And just WHY are Committee Reports a "particularly reliable source"? Because Justice Sotomayor WANTS them to be reliable? The colloquy between Senators cited by Justice Thomas demonstrates pretty convincingly that, at least in the case at issue, that Committee Report was not at all a reliable source of anything at all. If Justice Sotomayor wants us to believe that, as a general matter, Committee Reports are a reliable source for explaining just what the legislators intended, what their "purpose" was in passing a particular bill, a purpose or intent that might not be clear from just reading the text that the legislators actually voted on, she owes us more than an unadorned ipse dixit - they are a "particularly reliable source" only because (and presumably only when) Justice Sotomayor chooses to believe them.

[jph12]

I'm pretty sure that law professor Victoria Nourse, while arguing that legislative history could be useful if used properly, argued that legislative committee reports are the least reliable sources of legislative history because they are so early in the process. The conference committee reports were the most useful, and the usefulness degraded from there.

[Joe_dallas]

The biggest problem when relying of the committee reports is that often what is written in the committee reports is not what makes it into the final bill, ie the version envisioned by the committee is that the version that gets passed and signed into law. This is more often the case with the house or senate committee reports, though less often with the conference committee reports.

A very good example of this is the recent 2017 tax bill. The senate version of the bill and the senate committee report had excellent language dealing with the gift tax exclusion clawback. The final bill modified that the precise language and now contains ambiguous language with the conference committee vague on the explanation. Is the senate committee report supposed to tell us what the law is when that version didnt make it into the law?

[Sarcastr0]

In usual legislative cannon, the rejection of the original language implies the original language was specifically not the intention of Congress.

[Bob from Ohio]

Committee reports are written by staffers. No rep or Senator pays the slightest attention to them.

[Sarcastr0]

Laws are also written by staffers.

[Bob from Ohio]

Yes, but they are at least actually voted on so we have to look at the language. No vote is taken on a committee report.

Reps or senators often have little idea what is in the bill itself and vote on the broad political point only. That is why we ought to look only at the written language in the law and not look to committee reports [or anything else] as to "intent".

[Sarcastr0]

Functionally, this is a distinction without a difference. The folks work with the drafters and who sign off on the specific legislative language are the same as those who write the 'sense of Congress' and Committee reports.

Politicians vote how their Parties tell them to vote. Stuff this in the weeds, if it is noticed at all, is certainly below the Party's notice. Thus, it's the professional staff who are in the drivers' seat.

I understand this is generally the case, but I can tell you from personal experience as well - consummate bureaucrat that I have become, I defend my part of my agency's budget to appropriation subcommittee staff members, and getting them on board is all that matters. This is similarly the case when it comes to specifics of authorization-type policy matters.

[Sarcastr0]

But the more interesting (and less lame DC-credential-dropping) topic is whether this should matter procedurally.

IMO, the purpose of Congress is to communicate their wishes with the judiciary and executive who check one another to carry them out. Doing so via both a formal and colloquial medium is needed to address concerns of concreteness and breadth respectively. That's why Congress speaks the way it does.

should this be the way Congress acts? IMO, it is the best way to deal with the limitations of language. But it is not unreasonable to believe that Congress has gotten lazy when it comes to the clarity side of things, and to therefore deemphasize the colloquial materials would incentivize them to speak more clearly in the four corners of their statutes.

[Bob from Ohio]

Congress is not speaking thru its committee reports. Its not adopting the report and likely no one other than staffers or lobbyists ever read it.

You do point out the major problem with the US government, its un-elected staffers in both Congress and the Executive who matter, the elected [and confirmed appointments] are just show-horses.

[Sarcastr0]

The Congress that matters in the small picture (for better or for worse) is the one speaking through those reports.

The 'problem' is not with US government, it's a fundamental aspect of republics generally. With a few exceptions, people elect showhorses, not workhorses.
But if you want to get anything done you need workhorses doing it. And not workhorses that get kicked out with the electoral tides.

And this isn't necessarily bad. We are not talking about the broad policy swaths that are discussed in elections; we are talking about the communication of these mandates into practice, and that practice into edge cases.
Legislators (as opposed to legislatures as a body) don't seem to be held accountable for that kind of drafting, so I don't think the people are terribly upset about the current setup either.

[Sam Gompers]

I promise you all this debate about statutory or legislative history goes out the window when the Supremes decide the 1964 CRA always covered gays and transes.