How to read statutes and what legislators say about them

When courts interpret statutes, should they focus only on the text? That’s not a crazy idea; when we try to understand what someone else is telling us, we often focus on the words that person is using. The trouble with doing this in ordinary life is that often people choose their words imperfectly, so we routinely fill in many possible blanks and resolve many possible inconsistencies by looking at the context – who the speaker is, what the situation is, what body language and facial expressions went along with the words, and so on.

How do our habits in ordinary conversation carry over to reading statutes? One possible answer is that with statutes we have nothing except the words themselves. To speak just of federal statutes, only their words are voted on by and signed into law by the President. And since there are a lot of different people responsible for the process of formal enactment (all the members of Congress, plus the President), we can’t ask the various questions we would in interpreting conversation, because there are too many “speakers” to try to attend to. Following this logic, we would disregard what’s called “legislative history” – the record of who said what about the legislation under consideration. We would attend only to the text, or in other words we would be “textualists.” (Attending to the text may be quite a complex business, though; “textualists” aren’t by any means always “literalists.”)

But attending only to the text ought to strike us as very odd. If legislators speak to each other about proposed laws, and in the course of those debates they say “This law would mean X,” it’s strange that later on a court trying to determine whether the law does mean X would give little or no weight to the legislators’ statements. It is true that no one voted on those statements – only the statute itself gets voted on – but if those statements clarify what the legislators thought they were voting on, it seems self-defeating for judges seeking insight to disregard the legislators’ understandings. Most members of the Supreme Court in fact wouldn’t totally disregard them, but Scalia and Thomas generally would – and many judges today are hesitant to give much emphasis to what may be found in legislative history.

That wouldn’t be so odd if legislative history were misleading and unreliable – and so it has often been said to be. But is it? One way to find out would be to ask people in Congress whether they in fact rely on it. But until recently, it appears that no one had ever asked. Now there’s an exception (actually there are two, but the earlier study was evidently a much less extensive inquiry than the one I’m discussing). In two long articles, Abbe Gluck of Yale and Lisa Schultz Bressman of Vanderbilt describe their survey of “137 congressional staffers drawn from both parties, both chambers of Congress, and spanning multiple committees.” (Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stanford L. Rev. 901, 902 (2013); Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside—An Empirical Study of Congressional drafting, Delegation, and the Canons: Part II, 66 Stanford L. Rev. 725  (2014).)

Among their findings: “Perhaps most importantly, legislative history was emphatically viewed by almost all of our respondents—Republicans and Democrats, majority and minority—as the most important drafting and interpretive tool apart from text.” (Gluck & Bressman, Part I, at 965). Overall their respondents appeared to see legislative history as considerably more useful than many of the technical rules of interpretation (the “canons” of interpretation) that courts often use. (Id. at 966.)

As Bressman & Gluck carefully note, it’s possible to argue that legislative history should be disregarded even if it is reliable. But its supposed lack of reliability has certainly been an important reason why many judges have turned away from it. So this study not only suggests that perhaps judges should look more receptively to legislative history in the future, but also raises another question: why did judges accept the attack on legislative history’s reliability as readily as they apparently did, without anyone having actually checked whether that attack was factually well-founded?

One answer, which I think fits broadly with what Gluck and Bressman believe (they write about our potential “evolution” towards a true “Age of Statutes,” Bressman & Gluck, Part II, at 725), is that we are all still learning how to interpret statutes. We are novices, and we are prone to become infatuated with ideas that on more sober examination will prove problematic. But our infatuations aren’t randomly distributed. Nature abhors a vacuum, and we are prone to fill the space of our ignorance with our predispositions and our preferences – and the battles over interpretation have surely had strong political overtones. We can’t hope that politics, or profound disagreements over values, will someday cease to affect adjudication. But we can hope that if stubborn facts point to the value of a method of interpretation, then we will find a way to honor those facts, and look elsewhere for the tools of the ongoing arguments we have about values. We can, at least, hope!

Textualist interpretatiion as studied inattention

If judicial governance is worrisome, as I urged in my last post, how can we, and the judges themselves, avoid it? One answer is to agree on a set of interpretive rules, and follow them faithfully. This is a meaningful strategy; law needs to consist, in part, of rules and unhesitating rule-enforcers. I think it's probably also the case that if judges are confident in each other's broad fidelity to a set of neutral rules, they may be more comfortable with the use of more value-driven approaches brought in as threads in the weave, since they know that the threads are not being made the fundamental pattern of the whole effort.

I’m inclined to think that this is what has happened in the Supreme Court’s statutory interpretation jurisprudence. Today the Supreme Court seems to have achieved a measure of comfort with a largely textualist approach to statutory interpretation. Considerations of legislative purpose do get invoked, but rarely as the dominant guide to meaning.

But there is a price, in a certain studied inattention to legislative purpose. The strikingly named case of Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (No. 11-246, decided by the Supreme Court on June 18, 2012), illustrates this problem.

The case was a lawsuit brought by Mr. Patchak to challenge the Secretary of the Interior's acquisition of a piece of land to be held in trust for the Indian Band so that the Band could build a casino there. The land itself is in Michigan, and this was at least the second lawsuit seeking to stop the plan in its tracks; the first was brought by a group called Michigan Gambling Opposition (MichGO), and when that one failed Patchak, a MichGO member, brought this case. But the case amounted to a suit against the United States, and the United States is immune from suit unless it has waived its sovereign immunity, so the  issue before the Court was whether the United States had in fact waived its sovereign immunity to such suits.

As a general matter, the U.S. has waived its sovereign immunity, under the Administrative Procedure Act (APA), for suits “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U.S.C. § 702. Since Patchak was not seeking money damages (he just wanted a determination that the US did not validly own the land), and since he attacked the Secretary of the Interior's official actions (on the ground that the Band wasn’t recognized as a tribe when the statute authorizing such land acquisitions was enacted), the Court felt that this language covered Patchak, except for one problem. The problem was that section 702 of the APA has an exception: "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." Here, a statute called the Quiet Title Act permits suits against the U.S. to "quiet title" (I'll come back to what "quieting title" is in a moment) – and this Act has an exception, covering suits over "trust or restricted Indian lands,” 28 U.S.C. § 2409a(a).

So one way to approach the case was to ask whether Patchak's suit was a "quiet title" case. If it was, then the "Indian lands" exception applied to it and the case was barred by sovereign immunity. 8 justices agree, for quite persuasive reasons that Justice Kagan describes in her opinion for the Court, that Patchak's suit was not a quiet title action, because those lawsuits are cases in which the person bringing suit has some sort of claim of ownership of the property in question (and wants to "quiet" adverse claims). But Patchak had no such claim; he didn't own the land but just wanted to prevent the United States from taking the land and enabling the Band to put a casino on it.

Only Justice Sotomayor disagreed. She pointed out that:

The majority's conclusion hinges, therefore, on the doubtful premise that Congress intended to waive the Government's sovereign immunity for those like Patchak, who assert an "aesthetic" interest in land ..., while retaining the Government's sovereign immunity against those who assert a constitutional interest in land -- the deprivation of property without due process of law. This is highly implausible. Unsurprisingly, the majority does not even attempt to explain why Congress would have intended this counterintuitive result. (Sotomayor dissent at 8.)

What the majority says about Sotomayor's point is this:

The Band assumes that plaintiffs like Patchak have a lesser interest than those bringing quiet title actions, and so should be precluded a fortiori. But all we can say is that Patchak has a different interest. Whether it is lesser, as the Band argues, because not based on property rights; whether it is greater because implicating public interests; or whether it is in the end exactly the same – that is for Congress to tell us, not for us to tell Congress. As the matter stands, Congress has not assimilated to quiet title actions all other suits challenging the Government’s ownership of property. (Majority opinion at 14.)

Sotomayor is not quite fair when she says that the majority “does not even attempt to explain why Congress would have intended this counterintuitive result,” for the majority does try both to say that the result isn’t necessarily counterintuitive and that there might be a reason for it (namely that Patchak’s suit, unlike the suit of a putative owner seeking to “quiet” claims against him or her, “implicat[es] public interests”). But it is entirely fair to say that the majority doesn’t assert that this rationale in fact was Congress’ reason for legislating as it did. The majority leaves the question of what Congress had on its mind unresolved, because it concludes that the text is clear.

In short, to embrace the text the majority must cast aside the temptations of inference about Congressional purpose. The result is a sort of willed ignorance. Willed ignorance may often be preferable to imagined understanding – to the kind of adjudication in which judges infer Congress’ veiled purpose, often no doubt discerning a purpose remarkably in concert with the judges’ own values, and then impose that purpose on the language. But at the same time we must accept that the court’s disclaimer of understanding must restrict its ability to enable Congress to accomplish what it actually set out to do. That seems to implicate the concern Justice Breyer -- who here joins the majority -- raised in his dissent in the farmer-bankruptcy case I discussed a few days ago:

I believe it important that courts interpreting statutes make significant efforts to allow the provisions of congressional statutes to function in the ways that ... the elected branches of Government likely intended and for which it can be held democratically accountable.