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One of the Supreme Court’s most quietly destructive projects of late is its refusal to let Americans vindicate the rights that Congress has tried to give them. In a 6–3 decision on Thursday, the Republican-appointed justices continued that crusade, weakening a statute designed to protect investors by preventing them from suing when certain funds break the law. Justice Amy Coney Barrett’s wooden majority opinion dismissed the notion that Congress intended to let injured parties sue under the statute—even though lawmakers unambiguously stated that they wanted courts to recognize such a right. In a stinging dissent, Justice Ketanji Brown Jackson accused the majority of harboring outright “contempt” for Congress and undermining democracy by elevating its policy preferences above those of our elected representatives.
In this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the ruling, FS Credit v. Saba Capital, and the fierce debate it ignited between Barrett and Jackson. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: This seems like a very technical case, but that 6–3 split signifies a lot. What did the court decide?
Mark Joseph Stern: This case is yet another example of the Republican-appointed justices narrowing a federal law in ways that prevent parties from vindicating the rights Congress tried to give them. That’s a move the supermajority loves to make to undermine statutes that they don’t really like. We saw it just last term in Medina v. Planned Parenthood, when the supermajority said Medicaid recipients can’t sue when they’re denied the provider of their choice. And there are ominous signs we’ll see it happen again soon when the court reconsiders whether the Voting Rights Act contains a private right to sue. If the Republican-appointed justices apply the same reasoning there, they would render what remains of the Voting Rights Act largely unenforceable for the foreseeable future.
This particular case involves a federal statute called the Investment Company Act that provides that each share gets equal voting power in closed-end funds. So someone who holds 10 shares gets 10 votes. Activist investors who want to force changes at underperforming closed-end funds take advantage of this rule by buying up a bunch of shares and then trying to change how the fund is run. In this case, the fund being targeted thwarted the activist investors by denying them the full voting power of their shares. The investors sued under the statute, saying that move was obviously illegal. But by a 6–3 vote, with Justice Barrett writing for the conservatives, the Supreme Court held that they could not sue under this statute because Congress did not create such a right.
This case I think brings together a couple of themes. One is the supermajority’s insistence that, no, you can’t vindicate your rights in court. Another is this contempt for Congress that we keep seeing over and over again. Justice Jackson wrote a scorcher of a principal dissent rebuking the conservative supermajority again over its open disdain for Congress actually doing the thing Congress is tasked with doing. What’s her argument?
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First, Justice Jackson said Barrett just read the statute wrong, which I think is correct. But she also said that if the statute is really as unclear as Barrett thinks, the court should turn to legislative history for clarity. And the legislative history shows beyond any real doubt that Congress absolutely intended to create a private right to sue under this statute. As Jackson pointed out, the relevant House Committee said it “wishes to make plain that it expects the courts to imply private rights of action under this legislation.” As she put it: “I have seldom seen a clearer expression of legislative intent in a congressional record.” Barrett dismissed this as “psychoanalysis of Congress” and insisted that courts must look only at the text and ignore legislative history. She claimed this doctrine prevents courts from cherry-picking tidbits of committee reports or creating a private right to sue when Congress didn’t include one.
Jackson fired back that Barrett’s approach actually aggrandizes the role of the court and elevates it over Congress. She wrote that considering legislative history “prevents the preferences of judges from supplanting the will of the people.” And she makes a very strong case that Barrett’s approach gives courts more leeway to impose their policy preferences under the guise of statutory interpretation because they can pass off those preferences as logical “inferences” of what Congress really meant. As Jackson put it, disregarding legislative history “inappropriately elevates the justices’ own power by promoting our views about the ‘best’ policy call. But Congress is not our rival; courts are not in the policymaking arena at all.” For example, she cited the Supreme Court’s decisions striking down President Biden’s student debt forgiveness and clean energy plan, both of which drew on the majority’s subjective inference of what Congress really wanted.
As you said, it’s all about hostility to Congress. It’s about the court saying: We know best. This is what Congress must have meant. And if Congress didn’t mean this, it should have, so we’ll say it anyway. Jackson captured this well with her spiciest quote: “The majority’s failure—or refusal—to accept [legislative history] might stem from what commentators have called a prevailing ‘academic contempt for Congress.’ Academics may think what they wish of Congress; this court’s jurisprudence ought not be grounded in such contempt.”
I think her larger point, too, is that this is a one-way ratchet: The more you disempower Congress, the more you empower the court. And this is just the latest entry in a canon that Jackson is building up in a series of dissents. It’s a critique of the supermajority for assuming this posture of modesty while inexorably cutting off Congress at the knees. None of this is a great sign of what’s to come in the remaining cases. But it does feel like Justice Jackson is out there at the top of the mountain ringing a very loud alarm bell to say: This is the play. It’s a familiar play from the conservative supermajority, aggrandizing the court’s power in the guise of judicial restraint.
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It’s tricky, because they pretend to be limiting themselves with this rigid textualism. At this point, though, Justice Jackson is on the offensive. She’s showing us exactly how the majority manipulates the text until it gets where it wants to go. And she’s arguing that her approach isn’t just more honest; it’s more respectful to Congress, less interested in making the Supreme Court the apex body of government, more concerned about keeping the court in its lane of interpreting Congress’ handiwork. I can’t help but think of Callais here, because it’s a perfect example of how the court bulldozes Congress, bulldozing democracy in the process. The court is saying: We know what’s best. And KBJ is at the top of the mountain saying: No, we really don’t. Congress knows better than we do, and we should listen to them.
And of course Congress answers to us, the people—at least theoretically, and certainly in a way that the Roberts Six do not. I do think the dissenters have become very deft in calling out this play and saying: Whatever you think about this, judicial modesty it is not.
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