Writing for a 6-3 majority in the recently decided FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., Justice Barrett found no implied private right of action in the federal Investment Company Act (ICA) (SCOTUSBlog summary here). Responding to the dissent’s appeal to legislative history (some citations omitted):
In the dissent’s view, the key to this case lies in two Committee Reports expressing Congress’s “‘wish’” that courts liberally imply private rights of action. The dissent repeatedly faults us for failing to consider these Reports, and broadly attempts to defend the use of legislative history in interpreting statutes. Its efforts do not just fail—they backfire.
Notably, the dissent does not use the Committee Reports to clarify the meaning of Section 47(b) [of the ICA]. For instance, the dissent does not consult the Committee Reports to see how their authors used the words on which this case turns: “rescission at the instance of any party.” Nor does it try to identify the circumstances that prompted Congress to retool Section 47(b). Instead, the dissent uses the Reports on a mission impossible: divining how Congress would have wanted courts to resolve the question presented in this case. Its theory 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. See F. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547−548 (1983); K. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239, 241–244, 249 (1992).5 Worse, it violates the fundamental precept that “[w]e are governed by laws, not by the intentions of legislators.” Conroy v. Aniskoff, 507 U. S. 511, 519 (1993) (Scalia, J., concurring in judgment).
FN: The dissent responds that “it is hard to take th[is] criticism seriously” because all statutory interpretation seeks to discern Congress’s intent. But rather than trying to unearth Congress’s “actual intent,” courts look for “objectified’ intent”—the intent that a reasonable person would gather from the text of the law. A. Scalia, A Matter of Interpretation: Federal Courts and the Law 17 (1997). Put differently: The judicial task is to read words, not minds.
…
At most, the dissent’s citations show that members of the House and Senate Committees wanted courts to imply causes of action in some unidentified provisions of the securities laws. But even if committee members would have put Section 47(b) on that list, what should we make of it? The House Report notes disapprovingly that “in recent years, the Supreme Court [has] turned its focus toward a strict construction of statutory language and expressed intent.” H. R. Rep., at 28. It then bemoans the Court’s unwillingness to imply causes of action and criticizes the Court for declining to imply a damages remedy in TAMA. H. R. Rep., at 28–29, n. 6. One wonders: If the House Committee wanted to authorize private remedies and knew that the Court would be reluctant to imply them, why did it not make them express? Were members of the House Committee uncertain whether express causes of action would win approval from a majority of the House, a majority of the Senate, and the President? Did they worry that authorizing private remedies might undo compromises that enabled the bill to cross the finish line? There is no way to know. 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.
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).
I expect this Scalian analysis (Scalia would endorse every word) will be widely quoted in future opinions — especially “The judicial task is to read words, not minds.”
Posted at 6:27 AM