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Michael C. Dorf

A Unanimous Supreme Court Decision on the Foreign Sovereign Immunities Act Highlights Ongoing Divisions Over Legislative History


Wednesday, June 2, 2010

Academic politics are so nasty, the old joke goes, because the stakes are so low. Yesterday's Supreme Court decision in Samantar v. Yousuf may suggest a parallel adage for the judiciary: When the Justices cannot find room to disagree on the result of a case, they will find other ways to argue with one another.

Somali victims, and family members of victims, of torture and murder brought a lawsuit in federal court against Mohamed Ali Samantar, the former Vice President, Defense Minister, and Prime Minister of Somalia. Samantar sought dismissal of the case on the ground that a federal statute, the Foreign Sovereign Immunities Act, conferred immunity on him. The Supreme Court unanimously rejected that view.

The Act confers immunity on a foreign "state," defined to include "a political subdivision of a foreign state or an agency or instrumentality" thereof. Although the Act further defines "agency or instrumentality" to include a "separate legal person, corporate or otherwise," the Justices agreed that the term "otherwise," as used in that sub-definition, was best read to refer to other artificial persons—not to actual human beings. Reading the statute as a whole, the majority found numerous clues that it was not intended to cover what the law calls "natural persons"—although the Court left open the possibility that other doctrines might grant some immunity in the case at bar.

Despite their unanimity on the core issue in the case, the Justices produced four separate opinions.

How the Case Split the Court

Justice John Paul Stevens wrote the majority opinion, joined in full by six other Justices, and in part by another. Justice Samuel Alito said he joined the opinion but thought that the majority's citations of the legislative history of the Act were unhelpful. Justice Clarence Thomas joined the opinion "except for those parts relying on the legislative history of the" Act. And Justice Scalia did not join the opinion of Justice Stevens at all.

A longtime critic of the citation of legislative history, Justice Scalia was dismayed that Justice Stevens did not cordon off his citations of legislative history into a separate section of the opinion, which would have allowed Justice Scalia to join the balance of the opinion. Justice Scalia did not explain why he could not simply join Justice Thomas's statement; perhaps he thinks that joining only part of an opinion requires a Justice to identify precisely which part he or she is joining.

In any event, readers who do not closely follow the work of the Court may find the sniping over legislative history in Samantar baffling. In this column, I shall describe and evaluate the key objections that Justice Scalia and other "textualists" raise against the use of legislative history. I shall then offer an explanation for why the debate between textualists and "purposivists" tends to track ideological divisions.

Textualism and Article I, Section 7

Article I, Section 7 of the Constitution sets out the process by which a bill becomes a law: A majority of each congressional chamber votes for it, or in the case of a Presidential veto override, a two-thirds majority of each chamber votes for it. Textualists complain that legislative history does not pass through the Article I, Section 7 crucible, and is thus not law. Members of Congress vote to approve the text of a bill that comes before them, and only that text—not, for instance, the speech made by the bill's sponsor, or the committee report.

Yet judges who rely on legislative history do not ever say that legislative history is law in the way that the enacted text of a statute is law. They say, instead, that legislative history is an aid to statutory construction: Where the statutory language is unclear, judges may look to legislative history to help discern what Congress meant by the language it did enact. After all, courts sometimes use dictionaries to understand the meaning of the words Congress employed in a statute, and no one complains that the dictionary was not enacted according to the Article I, Section 7 process.

The most sophisticated version of the argument from Article I, Section 7 was set forth some years ago by now-Harvard Law School professor (and former law clerk for Justice Scalia) John Manning. In an article in the 1997 Columbia Law Review, Manning offered the view that textualism could be best understood as a "non-delegation" doctrine. In invoking the doctrine, Manning made reference to a series of Supreme Court cases that limit the ability of Congress to delegate its lawmaking power to other bodies.

Although the non-delegation doctrine is notoriously toothless in its application to delegations of regulatory power to administrative agencies, a separate line of Supreme Court cases does rather strictly limit the ability of Congress to delegate lawmaking power to a subset of itself. (A prominent example is the 1983 case of INS v. Chadha, in which the Supreme Court struck down the one-house legislative veto.) Giving authoritative weight to committee reports and the like, Manning argued, is a de facto delegation to a mere subset of Congress of power that the Constitution assigns to Congress as a whole.

Yet even as reconceptualized by Professor Manning, the case for textualism is not open and shut. It is susceptible to the same basic critique that the more simplistic argument faces: Judicial reliance on legislative history to construe a statute does not literally delegate power to subsets of Congress.

Textualists will typically respond by pointing to the importance of holding members of Congress accountable. As Justice Scalia said in his separate opinion in Samantar, "we have no reason to believe" that the House Committee Report cited by the majority "was read (much less approved) by the Senate—or indeed, by the Members of the House who were not on the Committee—or even, for that matter, by the members of the Committee, who never voted on the Report."

Justice Scalia is undoubtedly correct about all of that, but his argument may prove too much. After all, members of Congress—including members of the committees that produce the bills that become legislation—typically do not read the text of the bills for which they vote. Often, they cannot. Omnibus legislation running to hundreds or thousands of pages comes before them without sufficient time for them to read that legislation before voting on it. Senators and House members typically rely on staffers and their party leaders to give them a general sense of what is in the bills on which they vote.

On top of that, legislative drafting can be highly technical. A Senator or House member will often get a better understanding of what a proposed bill does by reading the chamber's committee report, than by struggling with the statutory text.

True, members of Congress vote on the statute's text but not the legislative history, regardless of what, if anything, they read. But that formal distinction at most supports a formal solution: Treat the text as law and the legislative history as gloss. And that is, in fact, exactly what Justice Stevens and other purposivists do. Yet Justice Scalia objects to even this use of legislative history.

Legislative History and Judicial Discretion

Another objection to the citation of legislative history focuses on its malleability. For any bill on just about any reasonably-complicated subject, one can search the Congressional Record and find support for a variety of positions. In the 1993 case of Conroy v. Aniskoff, Justice Scalia invoked a metaphor that he attributed to the late federal judge Harold Leventhal: "[T]he use of legislative history," Scalia credited Leventhal with saying, "is the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends."

Justice Scalia is not wrong in expressing skepticism about the sincerity of the motives of those who would use legislative history to support otherwise shaky arguments. But it is also not obvious that his analysis supports his conclusion that legislative history should be banned from statutory interpretation altogether.

To begin, one can say much the same thing about all sorts of extrinsic aids to interpretation. Indeed, during his Senate confirmation hearing, then-Judge John Roberts used the cocktail-party metaphor in connection with judicial citations of foreign law. Again, on any reasonably complex issue, any reasonably complex set of sources—such as legislative history, foreign law, industry practice, historical custom, and so forth—will contain conflicting strands. A judge who is so inclined can then cherry-pick material that supports a conclusion he is pre-disposed to reach. However, any interpretive methodology can be abused. There is no reason to think that legislative history is uniquely subject to abuse, and thus categorically irrelevant.

Further, one should ask what the alternative to using legislative history is. For Justice Scalia, the answer is "not using it." And here, it may be useful to analogize to another adage: It's easy to lie with statistics, but it's easier to lie without them. So too with legislative history. When the statutory text is unclear, a judge who does not look to external sources, such as legislative history, will surely be relying on her own subjective understanding of the naked language of the statute. In contrast, while a judge who looks to legislative history may do so self-servingly, there is at least a possibility that she will do so in an honest effort to figure out what Congress was attempting to accomplish.

The Ideological Stakes in the Battle Over Legislative History

Still, the lay reader may puzzle over the fact that the debate about the relevance of legislative history appears to break down along ideological lines. Why are conservative Justices so much more hostile to legislative history than liberal Justices are? After all, none of the arguments I have described in support of or opposition to judicial use of legislative history is inherently liberal or conservative.

The answer, I believe, rests on different attitudes towards legislation. Modern conservatives tend to be skeptical of regulation. Many conservative scholars and judges—and especially self-identified textualists—subscribe to public-choice theory, which teaches that Congress is nothing more than a forum in which interest groups fight over benefits. Public-choice-influenced judges like Seventh Circuit Judge Frank Easterbrook thus argue that a statute is nothing more nor less than a "deal" or "bargain" among interest groups. Courts, in this view, must enforce the deal's terms—its text—but should not go rummaging around for any supposedly public-regarding purpose.

Liberals, by contrast, typically view legislation more generously. Although, of course, liberals are not unaware of the power that lobbyists and interest groups wield in Congress, they nonetheless think that Congress does more than distribute goodies to favored constituents. Or at least, liberal judges say, Acts of Congress should be construed as though they pursue a public purpose.

If a judge begins, as many conservative judges do, with the presumption that legislation is likely to be a meddlesome interference with the market, then it is sensible for the judge to treat legislation as a deal. Because Congress's purpose is either nonexistent or nefarious, a conservative judge will not want to pursue that purpose beyond what the text clearly requires. He will, in other words, be attracted to textualism.

Liberal judges view regulation more sympathetically. They regard themselves as in partnership with Congress and thus, where statutory language is unclear, they will ask how they can best assist in carrying out the purposes of the legislation they must construe.

None of this is to say that textualism always leads to conservative results, or that purposivism always leads to liberal results. On the contrary, as jurisprudential rather than strictly political philosophies, these approaches sometimes lead judges applying them honestly to endorse results they oppose on policy grounds. Nonetheless, the choice to adopt one jurisprudential approach or another is made with awareness of where it usually leads. If the battle over legislative history seems beside the point in a case like Samantar, the stakes in other cases are real, and potentially high.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. The second edition of his book, Constitutional Law Stories, is now available. He blogs at

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