Justice Barrett v. Justice Jackson On Textualism

Textualists cannot rest on Justice Scalia’s laurels. They need to address modern criticisms.

Anyone who went to law school over the past three decades should be familiar with the arguments for and against the use of legislative history. Justice Scalia made it his mission to remind everyone, at every opportunity, why legislative history should not be cited. Justice Scalia would often dissent from any part of an opinion that cited legislative history. To this day, Justices who cite legislative history will say something to the effect of "For those who find legislative history useful," as if they are ashamed to rely on it. 

Yet, on the present Court, Justice Jackson seems most intent on reinvigorating the reliance on legislative history. The latest skirmish in the textualism battle came in FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. The case concerned whether the Court should imply a cause of action under the Investment Company Act. I haven't studied this statute in any depth, so I'll pass on the merits. Instead, I want to highlight the duel between Justice Barrett's majority opinion and Justice Jackson's dissent. 

Jackson may see herself as keeping Justice Breyer's mantle alive. But I think her approach goes deeper. She views the rejection of legislative history as a yet another form of "contempt" that the conservative evince towards Congress. KBJ cites Professor Victoria Nourse:

The majority's failure—or refusal—to accept this might stem from what commentators have called a prevailing "academic contempt for Congress." V. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L. J. 70, 142 (2012). Academics may think what they wish of Congress; this Court's jurisprudence ought not be grounded in such contempt.

This model is consistent with Jackson's broader framing of judicial restraint. Jackson purports to not strike down an act of Congress, or a regulation, unless there is a clear reason to do so. She writes:

[Legislative history] is a worthy and necessary effort because it prevents the preferences of judges from supplanting the will of the people. . . written"). Using legislative history helps prevent judges who are duty bound to interpret Congress's laws from making them instead. . . . But when a statute's text needs clarification, discarding legislative history turns the Court's assessment of Congress's intent into a transparently empty gesture. Even worse, it inappropriately elevates the Justices' own power by promoting our views about the "best" policy call.

Jackson is a Thayerian--unless the the First Circuit blocked something Trump did. I'm still disappointed she didn't write separately in Trump v. Anderson. She was ready to, but just couldn't pull the trigger.

It makes sense that Chief Justice Roberts assigned this opinion about statutory interpretation to Justice Barrett. The Scalia clerk and former law professor is in her element with these sorts of academic debates. Yet, Justice Jackson made a few points that Justice Barrett did not respond to. I get the sense that Justice Barrett thinks that The Boss won this debate decades ago, so there is little sense in arguing further. But there are some new developments that affect the analysis. Textualists cannot just rest on Justice Scalia's laurels forever. To borrow a phrase, textualism is not frozen in amber. Or to borrow another phrase, we cannot simply declare victory and move on.  The Court's conservatives need to address modern criticisms of textualism, lest the other side regains ground.

First, Jackson cites Professors Abbe Gluck and Lisa Bressman, who have done some serious empirical work about how members of Congress view textualism. 

The reports therefore serve as the final sales pitch for a bill, and "there is evidence that lawmakers themselves pay more attention to these reports than a statute's text to understand the statute's purpose and meaning." Learning Resources, Inc., 607 U. S., at ___ (JACKSON, J., concurring in part and concurring in judgment) (slip op., at 2) (citing A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 965–966, 968–969 (2013)); see

I don't recall that Justice Scalia ever had occasion to address textualism in practice.  Justice Barrett cites Gluck and Bressman for an ancillary point, but ignores the important bottom line of how important legislative history is for members of Congress and staffer. That citation is problematic. This point can't simply go unaddressed.

Second, the major question doctrine has forced the Court to embark on atextual inquires about legislative intent.

Consistent with the "classic criticism" of courts' use of legislative history, the majority's aversion to the employment of this interpretive tool appears to stem from an intuition that "Congress's subjective intent [is] [un]knowable." Ante, at 12. But it is hard to take that criticism seriously when the modern Court nonetheless routinely interprets statutes by speculating about what Congress must have wanted.See, e.g., Learning Resources, 607 U. S., at ___ (plurality opinion) (slip op., at 8) (drawing from a "practical understanding of legislative intent" that "Congress would not have delegated highly consequential power through ambiguous language" (internal quotation marks omitted)).[FN9]

[FN9] 9 See also, e.g., Biden v. Nebraska, 600 U. S. 477, 506 (2023) (applying the major questions doctrine to conclude that " 'Congress would likely have intended for itself ' " the task of making " '[t]he basic and consequential tradeoffs' inherent in a mass debt cancellation program" (quoting West Virginia v. EPA, 597 U. S. 697, 730 (2022))); id., at 521 (BARRETT, J., concurring) (relying on the absence of "context clues" to determine whether "Congress would have delegated the power to the agency"); FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000) ("Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion").

Justice Scalia saw early shades of "elephants in mouseholes" but he never saw anything like Biden v. Nebraska. Jackson's point has some merit. I find the debate between Justice Gorsuch and Justice Barrett about the nature of the major question doctrine a bit tiring, but from either angle, the Court is trying to determine whether Congress intended to delegate such a broad power. The answer to that question can't be found in the text of the statute, because if was in the plain text, there would be no need for the MQD. Justice Jackson argues, not unreasonably, that legislative history might be a useful way to determine whether Congress intended to delegate a power when the text squarely does not answer that question.

I still think all of the cautions about legislative history apply with full force to the Major Questions Doctrine. But this is a point that should be addressed head-on.

Third, the Roberts Courts has rejected implying any new causes of action, even with statutes that likely would have been read to imply a cause of action when adopted decades ago. Justice Barrett addresses this shift:

Private litigants sometimes sue to enforce statutes that lack comparable language. At one point in time, the Court stood ready to let them; it reasoned that courts should "bealert to provide such remedies as are necessary to make effective the congressional purpose" underlying a statute. J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964). But we have since rejected the practice of fashioning rights of action as we see fit. Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 170 (1994); Sandoval, 532 U. S., at 287. Home-grown causes of action are difficult to reconcile with "the Constitution's separation of legislative and judicial power." Egbert v. Boule, 596 U. S. 482, 491 (2022) (internal quotation marks omitted). Rather than augmenting statutes, we interpret them. If a statute does not spell out a right of action, we examine the statute's text and structure to determine whether it implicitly provides one.

How should the present Court deal with legislative history that was written for the Burger Court to read? In the late 1970s, Congress reasonably could have expected the judiciary to rely on their legislative history, but five decades later the judiciary rejects those sources. 

Fourth, Justice Jackson observes that the Court routinely cites "legislative history" for purposes of originalism:

It is, in fact, the majority's castigation of legislative history as something verging on extralegal (see, e.g., ante, at 14) that is the historical outlier. And that consternation is especially odd coming from a Court that eagerly delves into the transcripts of the ratification debates, the Framers' private correspondence, and the Federalist Papers to ascertainwhat the Framers would have "understood," "recognized," and "expected."

This is not a new argument, but is worth addressing. One of the primary reasons that Justice Scalia rejected legislative history was the concern that these documents were created with the intent to influence future litigation. That certainly cannot be said for the records of the Constitutional Convention. These proceedings were conducted in absolute secrecy, and the records were not released till decades after ratifications. Members of the convention did not speak with an intent to influence debates. (Of course, I acknowledge the fact that Madison altered his records many years later; these notes should be taken with all due caution.)

The ratification debates were public, though it is highly unlikely that any members of those conventions said what they said to influence judicial decisions. That sort of usage would have been unthinkable in 1788 or 1789. The judiciary simply wasn't that important.

The Federalist Papers, by contrast, are works of advocacy. Publius was arguing for and against certain positions, and responding directly to charges by the Anti-Federalists. The Federalist Papers are not a form of legislative history, but instead sketch out arguments on both sides of useful debates. We should not presume the Federalists got the argument right. Indeed, the Anti-Federalists often had the better argument. Ultimately, all of these sources are useful indicia of original meaning, though I  know many originalists who refuse to consider these sources at all. They limit their work to the text of the Constitution, unilluminated by subsequent developments.

Finally, I will opine Justice Barrett's rhetoric. [Trigger warning for anyone who has any connection to Notre Dame, it is probably for your own good to stop reading now.] I sometimes feel that Justice Barrett is more concerned with sharp one-liners than persuasive legal arguments.

Barrett writes, "Put differently: The judicial task is to read words, not minds." Sounds great, but the entire premise of the major questions doctrine is to look beyond the words to what the legislature intended. Doesn't the babysitter have to read the mother's mind?

Here, she is using some sort of religion-ish imagery to pun on Church of the Holy Trinity:

At bottom, the dissent hopes to revive that old-time devotion to legislative history. See, e.g., Church of Holy Trinity v. United States, 143 U. S. 457, 464–465 (1892). Instead of winning converts, however, the dissent illustrates why statutory interpretation must focus on the text—or, to borrow from Justice Robert Jackson, why interpretation must be driven by "analysis of the statute" rather than "psychoanalysis of Congress." United States v. Public Util. Comm'n of Cal., 345 U. S. 295, 319 (1953) (concurring opinion).

Why use phrases like "old-time devotion" (a play on "Give Me That Old Time Religion") and "winning converts"? This is a zinger for the sake of zinging--or perhaps singing. Jackson continues the chorus, blaring that Justice Scalia changed the old-time tradition:

Using legislative history as a tool of statutory interpretation is a time-honored tradition. Indeed, the Judiciary's collective "old-time devotion" to the legislative-history hymnal, ante, at 14, held steady for more than a century—until the late 1980s, when the Court suddenly began to sing a different tune.

Justice Barrett should have cut the purple prose. It wasn't very clever, and it didn't make the winning point.

The quotation to Justice Robert H. Jackson is even problematic. This "psychoanalysis" quotation is in every single legislation textbook, and Barrett has no doubt used it many times. But when I read this sentence, I wondered if Justice Kentanji Brown Jackson was going to dunk on Justice Barrett, because RHJ routinely cited legislative history. KBJ did exactly that:

Even Justice Robert Jackson— yes, the very one whose teaching serves as the coda to the majority's denunciation of legislative history, see ante, at 14—recognized that reliance on legislative history is "justified where the face of the Act is inescapably ambiguous, and then . . . we should not go beyond Committee reports, which presumably are well considered and carefully prepared." Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384, 395 (1951) (concurring opinion).

Robert Jackson would have been stunned to see Scalia's approach to textualism and originalism. Jackson's functionalist Youngstown concurrence is a repudiation of the sort of formalism Scalia would champinon.

What was the point of citing RHJ if KBJ was going to slam it back in Barrett's face? Indeed, this was a self-goal. Once Barrett saw the draft dissent, she should have removed this reference. But she left it in. Why? Barrett didn't care because Justice Scalia won.

I know conservatives like to attack Justice Jackson. I do sometimes. I find her never-ending questions during oral argument to be a nuisance. But at least she is trying. She is doing things. She is trying to make an impact on the jurisprudence. That is far more than I can say for Justice Sotomayor, or even Justice Kagan. When their records are written, what dissents did they write that would influence future generations? Seriously, try to think of a single opinion either has written over the past two decades that is worth studying outside the context of the particular case? They certainly had some trenchant dissents in particular cases, but few had salience beyond that particular moment.

This might be heretical, but I think Justice Jackson sees herself playing the role that Justice Scalia played in the late 1980s. Remember, Scalia arrived at a Court at odds with his philosophy, and through sheer intelligence and force of personality, he was able to move the law. He would dominate oral argument and write lots of solo dissents. I'm sure he would have been more of a nuisance if he was not so darn charming. I don't think that Justice Jackson has the talents Scalia had (no one else does), but she is working her angles to make an imprint on the law. For that, I give her credit.