At SCOTUSblog, Abbe Gluck: Legislative history lives on – in secret. From the introduction:
Rumors of the textualist triumph over legislative history have been greatly exaggerated.
A debate has raged among lawyers and judges for decades about the changes the Supreme Court’s textualists have wrought in statutory interpretation. One of textualism’s key moves has been to argue that congressional intent is inscrutable in a 535-member body and so congressional materials – especially legislative history, such as floor statements and committee reports from the enactment process – should not be considered, instead of an approach focused only on the words actually enacted. Critics have responded that interpreting statutory text divorced from the purpose or history of a statute’s enactment actually enlarges, not cabins, judicial discretion and does not give sufficient respect to Congress’ collective intentions or work-product.
But recent cases suggest the pendulum may be secretly swinging back. Whether the justices want to admit it or not, the court today is paying attention to legislative history and what it reveals about statutory purposes. And the “secretly” is the most intriguing part.
My phone was ablaze about two weeks ago with reports from a Federalist Society panel at the University of Pennsylvania examining Justice Samuel Alito’s statutory interpretation jurisprudence. Even though Alito is a self-proclaimed textualist, he has never fully eschewed legislative history. He looked to legislative history often when he was on the U.S. Court of Appeals for the 3rd Circuit and remains the most explicit user of congressional materials among the court’s most committed textualists. Indeed, one of his best known dissents, his 2020 opinion in Bostock v. Clayton County, in which the court considered whether Title VII of the Civil Rights Act applies to sexual-orientation discrimination, chastised his fellow textualists for “ignor[ing] … congressional intent and legislative history.”
The discussion of Alito’s approach, however, opened the door to a much more interesting revelation. One panelist, U.S. Court of Appeals for the D.C. Circuit Judge Gregory Katsas, himself a textualist, not only stated that it can be helpful when construing a statute to understand the circumstances that gave rise to it – in other words the statute’s general purpose, although the “p” word was never uttered – but he also noted that legislative history can be very helpful to understanding those circumstances.
But next came the kicker: Katsas referred to a recent dissent he authored concerning the January 6 attack on the Capitol. He admitted that he himself wanted to reference the circumstances that gave rise to one of the governing statutes, a financial corruption law that came out of the Enron scandal but was being used to prosecute the assailants. Rather than cite the act’s legislative history directly, however, Katsas explained that he chose instead to cite a Supreme Court case, which itself announced the act’s purpose only after consulting its legislative history. Specifically, Katsas stated that, although “most of the briefs and stuff cited the legislative history,” he decided not to do so “because I didn’t want to create a side show of, you know, conservative Fed Soc judge in this edgy case cites legislative history.” So instead he cited a page in Yates v United States – an opinion written by liberal purposivist Justice Ruth Bader Ginsburg, which itself relies directly on the act’s legislative history to discern its purpose.
Posted at 6:33 AM