Thompson v. Thompson

Justice Scalia,

concurring in the judgment.

I write separately because in my view the Court is not being faithful to current doctrine in its dicta denying the necessity of an actual congressional intent to create a private right of action, and in referring to Cort v. Ash, 422 U. S. 66 (1975), as though its analysis had not been effectively overruled by our later opinions. I take the opportunity to suggest, at the same time, why in my view the law revision that the Court’s dicta would undertake moves in precisely the wrong direction.

I

I agree that the Parental Kidnaping Prevention Act, 28 U. S. C. § 1738A, does not create a private right of action in federal court to determine which of two conflicting child custody decrees is valid. I disagree, however, with the portion of the Court’s analysis that flows from the following statement:

“Our focus on congressional intent does not mean that we require evidence that Members of Congress, in enacting the statute, actually had in mind the creation of a private cause of action.” Ante, at 179.

I am at a loss to imagine what congressional intent to create a private right of action might mean, if it does not mean that Congress had in mind the creation of a private right of action. Our precedents, moreover, give no indication of a secret meaning, but to the contrary seem to use “intent” to mean “intent.” For example:

“[T]he focus of the inquiry is on whether Congress intended to create a remedy. Universities Research Assn., Inc. v. Coutu, 450 U. S., at 771-772; Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. at 23-24; Touche Ross & Co. v. Redington, [442 U. S.], at 575-576. The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide.” California v. Sierra Club, 451 U. S. 287, 297 (1981) (White, J.).

We have said, to be sure, that the existence of intent may be inferred from various indicia; but that is worlds apart from today’s Delphic pronouncement that intent is required but need not really exist.

I also find misleading the Court’s statement that, in determining the existence of a private right of action, “we have relied on the four factors set out in Cort v. Ash, . . . along with other tools of statutory construction.” Ante, at 179. That is not an accurate description of what we have done. It could not be plainer that we effectively overruled the Cort v. Ash analysis in Touche Ross & Co. v. Redington, 442 U. S. 560, 575-576 (1979), and Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 18 (1979), converting one of its four factors (congressional intent) into the determinative factor, with the other three merely indicative of its presence or absence. Compare Cort v. Ash, supra, at 78, with Transamerica, supra, at 23-24.

Finally, the Court’s opinion conveys a misleading impression of current law when it proceeds to examine the “context” of the legislation for indication of intent to create a private right of action, after having found no such indication in either text or legislative history. In my view that examination is entirely superfluous, since context alone cannot suffice. We have held context to be relevant to our determination in only two cases — both of which involved statutory language that, in the judicial interpretation of related legislation prior to the subject statute’s enactment, or of the same legislation prior to its reenactment, had been held to create private rights of action. See Cannon v. University of Chicago, 441 U. S. 677 (1979); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353 (1982). Since this is not a case where such textual support exists, or even where there is any support in legislative history, the “context” of the enactment is immaterial.

Contrary to what the language of today’s opinion suggests, this Court has long since abandoned its hospitable attitude towards implied rights of action. In the 23 years since Justice Clark’s opinion for the court in J. I. Case Co. v. Borak, 377 U. S. 426 (1964), we have twice narrowed the test for implying a private right, first in Cort v. Ash, supra, itself, and then again in Touche Ross & Co. v. Redington, supra, and Transamerica Mortgage Advisers, Inc. v. Lewis, supra. See also Cannon v. University of Chicago, supra, at 730 (Powell, J., dissenting), and California v. Sierra Club, supra, at 301 (Rehnquist, J., joined by Burger, C. J., and Stewart and Powell, JJ., concurring). The recent history of our holdings is one of repeated rejection of claims of an implied right. This has been true in 9 of 11 recent private right of action cases heard by this Court, including the instant case. See Touche Ross, supra; Transamerica, supra; Universities Research Assn., Inc. v. Coutu, 450 U. S. 754 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 91-94 (1981); California v. Sierra Club, supra; Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 639-640 (1981); Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 13-18 (1981); Daily Income Fund, Inc. v. Fox, 464 U. S. 523, 535-536 (1984); and Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 145-148 (1985). But see Merrill Lynch, supra, and Cannon, supra. The Court’s opinion exaggerates the difficulty of establishing an implied right when it surmises that “[t]he implied cause of action doctrine would be a virtual dead letter were it limited to correcting drafting errors when Congress simply forgot to codify its evident intention to provide a cause of action.” Ante, at 179. That statement rests upon the erroneous premise that one never implies anything except when he forgets to say it expressly. It is true, however, that the congressional intent test for implying private rights of action as it has evolved since the repudiation of Cort v. Ash is much more stringent than the Court’s dicta in the present case suggest.

II

I have found the Court’s dicta in the present case particularly provocative of response because it is my view that, if the current state of the law were to be changed, it should be moved in precisely the opposite direction — away from our current congressional intent test to the categorical position that federal private rights of action will not be implied.

As Justice Powell observed in his dissent in Cannon, supra, at 730-731:

“Under Art. Ill, Congress alone has the responsibility for determining the jurisdiction of the lower federal courts. As the Legislative Branch, Congress also should determine when private parties are to be given causes of action under legislation it adopts. As countless statutes demonstrate, including Titles of the Civil Rights Act of 1964, Congress recognizes that the creation of private actions is a legislative function and frequently exercises it. When Congress chooses not to provide a private civil remedy, federal courts should not assume the legislative role of creating such a remedy and thereby enlarge their jurisdiction.” (Footnote omitted.)

It is, to be sure, not beyond imagination that in a particular case Congress may intend to create a private right of action, but chooses to do so by implication. One must wonder, however, whether the good produced by a judicial rule that accommodates this remote possibility is outweighed by its adverse effects. An enactment by implication cannot realistically be regarded as the product of the difficult lawmaking process our Constitution has prescribed. Committee reports, floor speeches, and even colloquies between Congressmen, ante, at 184-185, are frail substitutes for bicameral vote upon the text of a law and its presentment to the President. See generally INS v. Chadha, 462 U. S. 919 (1983). It is at best dangerous to assume that all the necessary participants in the law-enactment process are acting upon the same unexpressed assumptions. And likewise dangerous to assume that, even with the utmost self-discipline, judges can prevent the implications they see from mirroring the policies they favor.

I suppose all this could be said, to a greater or lesser degree, of all implications that courts derive from statutory language, which are assuredly numerous as the stars. But as the likelihood that Congress would leave the matter to implication decreases, so does the justification for bearing the risk of distorting the constitutional process. A legislative act so significant, and so separable from the remainder of the statute, as the creation of a private right of action seems to me so implausibly left to implication that the risk should not be endured.

If we were to announce a flat rule that private rights of action will not be implied in statutes hereafter enacted, the risk that that course would occasionally frustrate genuine legislative intent would decrease from its current level of minimal to virtually zero. It would then be true that the opportunity for frustration of intent “would be a virtual dead letter[,]. . . limited to . .. drafting errors when Congress simply forgot to codify its . . . intention to provide a cause of action.” Ante, at 179. I believe, moreover, that Congress would welcome the certainty that such a rule would produce. Surely conscientious legislators cannot relish the current situation, in which the existence or nonexistence of a private right of action depends upon which of the opposing legislative forces may have guessed right as to the implications the statute will be found to contain.

If a change is to be made, we should get out of the business of implied private rights of action altogether.