Adam White writes about a potential shift in the American judiciary.
Does legislative history have a future in judicial opinions? For the first time in a long time, it seems so.
For decades, the rise of textualism was accompanied by the decline of judicial reliance on legislative history – Senate and House committee reports or floor debates – to augment interpretation of a law’s own words. Textualism was meant to constrain judicial discretion, and resorting to legislative history was too fraught with temptations for judicial creativity by allowing the judge to cherry-pick a choice quote or statement to support his or her predilections. “Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends,” wrote Justice Antonin Scalia in 1993.
So in an era where “we’re all textualists now,” as Justice Elena Kagan famously quipped in a 2015 talk at Harvard Law School, one might assume that debates over legislative history are in permanent decline. Indeed, even Kagan, in that same 2015 talk, added that “I’m not such a fan of legislative history myself, honestly.” …
… If anything, legislative history has been even less relevant since then.
So when the court delivered nearly 170 pages of opinions last month in the big tariffs case, Learning Resources v. Trump, one would be forgiven for glossing over Justice Ketanji Brown Jackson’s brief five-page concurrence, in which she wrote separately (and alone) to declare that “the Court can, and should, consult a statute’s legislative history to determine what Congress actually intended the statute to do.”
Jackson’s concurrence is worth serious attention, and not just among non-textualists. The next few years might see an uptick in debates over the possible uses and misuses of legislative history thanks to another recent landmark decision, Loper Bright v. Raimondo, which put an end to Chevron deference – the doctrine that courts should defer to an executive agency’s interpretation of an ambiguous statute.
