Yesterday’s Supreme Court decision in FS Credit Opportunities Corp. v. Saba Capital Master Fund resolved a fairly technical question of securities law—whether Section 47(b) of the Investment Company Act creates an implied private right of action for contract rescission. The answer, per a six-justice majority opinion by Justice Barrett, is no. An interesting feature of the case is a vigorous debate among the justices over the question of what role if any legislative history should play in statutory interpretation.
Writing in dissent, Justice Jackson, joined by Justice Sotomayor, faulted the majority for disregarding the legislative history of Section 47(b), to which Justice Barrett replied, “guilty as charged.” For Jackson, committee reports offer “a traditional tool courts consult when attempting to ascertain Congress’s intent.” The majority’s hostility to legislative history seemed to be “the historical outlier.” The junior justice framed legislative history as a separation-of-powers imperative. Discarding it, she warned, “inappropriately elevates the Justices’ own power by promoting our views about the ‘best’ policy call.” (A year ago, in Stanley v. City of Sanford, Jackson had struck a similar theme about “our proper role as judges in a democratic system” in a dissent that invoked legislative history.)
Barrett did not share Jackson’s “hope[] to revive that old-time devotion to legislative history.” Her opinion for the Court methodically dismantled Jackson’s resort to committee reports, invoking the classic quip from Justice Scalia that using legislative history is “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” “True to form,” she noted, “the dissent navigates around unwelcome guests.”
Barrett’s central textualist argument was crisp: “Congress expresses itself as a body through the text it enacts; the views of the 42-member House Committee on Interstate and Foreign Commerce and of the 15-member Senate Committee on Banking, Housing, and Urban Affairs are not the law.” Jackson’s theory, Barrett noted, “depends on the fictional premise that hundreds of legislators (not to mention the President) shared a unified private view of how the statute should apply in a contested circumstance.” The judicial task, as Barrett put it citing Justice Scalia’s A Matter of Interpretation: Federal Courts and the Law (1997), is not to read minds but to “read words”—“objectified intent,” not the speculative reconstruction of what unnamed legislators may have hoped courts would do. Barrett also cited Reading Law: The Interpretation of Legal Texts (2012), the treatise by Justice Scalia and Bryan Garner that has become something of a textualist bible, for the proposition that “changed language typically indicates changed meaning.” Quoting another Justice Jackson—Robert—Barrett wrote in her closing sentences for the Court that the judge’s task is to conduct “‘analysis of the statute’ rather than ‘psychoanalysis of Congress.’”
In a separate dissent consisting of a single paragraph, Justice Kagan expressed her own position on legislative history that resided “someplace in between the majority’s and the principal dissent’s. The one-sentence version is: Reliance on legislative history may be appropriate when statutory text in context remains, after careful review, stubbornly ambiguous.” Kagan joined parts of Jackson’s dissent but declined to join her legislative history analysis.
A generation ago, Court watchers observed Justice Scalia and Justice Breyer sparring over legislative history and statutory interpretation. In the way each justice made her case in FS Credit, it’s hard not to see echoes of the Scalia-Breyer debate—now reprised by their former clerks, and with what we can now call the Scalia-Barrett side still coming out on top.