At The Narrowest Grounds, Asher Steinberg: Supreme Court 2016 Statutory Term in Review: Disregarding Legislative History's Textualist Uses in SW General. From the introduction:
Textualists believe in using legislative history to interpret statutes—even when, if not for a statute's legislative history, they would otherwise find the statute's text clear. What grounds could I have for making such a provocative remark? It's famously true, of course, that textualists reject the notion of legislative history as authoritative gloss. That's because textualists believe a statute's legal meaning is what its language means in some objective sense, not what Congress intended to convey by it. But textualists have always granted that legislative history can help us work out what statutory language means, if only because legislative history, like any other writing or speech, can serve as evidence of how particular words or phrases are used, and thus what those words or phrases mean. Here, for example, is Justice Scalia discussing the point in a published dialogue with John Manning five years ago:
And by the way, I don't object to all uses of legislative history. If you want to use it just to show that a word could bear a particular meaning–if you want to bring forward floor debate to show that a word is sometimes used in a certain sense–that's okay. I don't mind using legislative history just to show that a word could mean a certain thing. We are trying to ascertain how a reasonable person uses language, and the way legislators use language is some evidence of that, though perhaps not as persuasive evidence as a dictionary. That is using legislative history as (mildly) informative rather than authoritative: “the word can mean this because people sometimes use it that way, as the legislative debate shows,” rather than “the word must mean this because that is what the drafters said it meant.”
There's an interesting ambiguity here. Scalia's clear that he's not persuaded by arguments that statutory language must mean this because that's what the drafters said it meant. It's unclear, though, whether he's open to arguments that statutory language can mean this because that's what the drafters said it meant to them, or whether the only sorts of legislative history he'll consider for this purpose are statements that incidentally use a word or phrase in a certain way, rather than defining it or glossing it.
I think it's likely that Scalia would at least be reluctant to use gloss as evidence of linguistic meaning; Scalia seemed to distrust legislative gloss apart from his concern that it not be deemed controlling. Earlier in his response to Manning's question on legislative history, he complains about legislative history that "simply declares what the committee or sponsor intends a word or phrase to mean: 'Subsection B means this or that.' That statement is meant to be authoritative; its one and only function is to tell us how that committee or sponsor wants the bill to be interpreted. When judges attribute that intention to Congress as a whole, they are not ascertaining meaning . . . ." However, if legislative history can be evidence of what a word in a statute can mean, what's better evidence, as far as legislative history goes, than a definitive statement by that statute's drafters on what they think that word means in that statute? A floor speech in which a Senator uses a statutory term to mean something or another only shows what the term can mean in a context that may bear little resemblance to the context in which it's used in the statute; we may also be generally suspect of informal usage as a proxy for meaning in the statute's relatively formal and technical context. On the other hand, a statement by the drafters that some snippet of statutory language means something to them would seem much stronger evidence of what that language at least can mean to reasonable people in the context of the statute itself.
Bracketing for the moment Scalia's possible hostility to using legislative gloss as evidence of linguistic meaning, it's at least clear that Scalia was open to using some legislative history as evidence of what statutory language can mean, but not open to using legislative history as authoritative evidence of what statutory language does mean. This use of legislative history to suggest linguistic possibilities, but not to resolve linguistic debates, has an intriguing corollary; for Scalia at least, legislative history is much more probative when a statute seems clear than when it's ambiguous. When Scalia already knew from other sources that a statute was ambiguous, legislative history had no work to do for him; it could at most redundantly confirm that a statute could mean what a dictionary or his own understanding of the language already told him it could mean. But when a statute seemed clear, legislative history could productively dispel that appearance of clarity and show him that a "word can mean this because people sometimes use it that way."
This seems counterintuitive given textualists' devotion to the plain meaning rule, but the internal textualist logic is perfectly sound. As textualists don't think a statute means what Congress intended, the usual way people use legislative history—as a solvent of ambiguity if the statute's text isn't clear—makes no sense for textualists. There's just no reason for textualists to say that if a statute's ambiguous, it means what "Congress" (really, certain involved committees or members) said it meant. But textualists are interested in what statutory language means, and absent argument that Congress is so linguistically incompetent that its usage is worthless evidence of linguistic meaning, it makes no sense to have a rule by which legislative history is disregarded so long as a statute seems clear prior to considering evidence of alternative usage in legislative history. That would be tantamount to saying that courts should decide whether a statute's clear on less than all the relevant evidence. Indeed, on Scalia's understanding of legislative history's uses, it would seem that the only time when legislative history matters, at least in any dispositive way, is when a statute would seem clear if not for legislative history.
Posted at 6:11 AM