The Supreme Court issued its decision in Samantar v. Yousuf yesterday, in a 9-0 decision that I think got it right. The Foreign Sovereign Immunities Act, says the Court, was not intended to codify common-law “official immunity”* or capture the act-of-state doctrine. Rather, the FSIA’s text is clear that it applies to states and the entities that compose them.
Even though the Court was unanimous on its interpretation of the statute, it was not unanimous on the path taken to get there. Thomas and Alito wrote terse one to two line concurring opinions decrying the use of legislative history in the principal opinion. Scalia went a step further, refusing to concur in anything more than the judgment, all because the principal opinion was soiled with a drop of legislative history.
I kind of agree with Scalia on his point that references to legislative history are unnecessary when the text is clear. And, given that even the principal opinion finds the text is clear, it seemed a bit superfluous to drop some legislative history into a footnote in an effort to further buttress the case. Smarter people have written about the dangers of using legislative history in general, and I largely agree with them.
Still, I feel like this is one of those situations that demonstrates why people hate lawyers. Did we really need 6 pages to go in the U.S. Reports for all of eternity because a few of the judges disagree with a footnote? Probably not. The slippery slope to widespread use of legislative history is unlikely to start in a supplemental footnote of an opinion construing a somewhat arcane statute. The Supreme Court might have more time to decide substantive issues (in more cases) if it didn’t spend so much f@#%ing time wrestling over process issues like this one.
-Michael
*It was odd to me that they kept referring to “official immunity.” I’ve always understood the doctrine as “head of state immunity,” which would suggest a much more limited application. Maybe a future Supreme Court case?
Update: Michael Dorf discusses the squabbling.
