Judicial history.

• Author: Vermeule, Adrian

1. INTRODUCTION

   Suppose that a case before a lower federal court turns on the interpretation of a disputed precedent of the Supreme Court. As support for their opposed interpretations, the litigants introduce various items of "judicial history":(1) internal drafts of the Supreme Court's opinion, memoranda circulated among the Justices before publication of the opinion, and other official documents culled from the vast body of publicly available judicial materials.(2) These documents, each litigant argues, demonstrate that the opinion's author and the Justices who joined the opinion intended to say one thing rather than another, or that the best reading of the opinion's text would embody that interpretation.

   This proposed use of judicial history differs from the typical uses of judicial materials. Historians, biographers, and journalists draw upon judicial history to set an opinion in the context of its time or to illuminate the internal workings of the Court's deliberative processes.(3) Lawyers preparing for argument before the Court have taken to studying the judicial history of relevant recent precedents in order to gauge how sitting Justices will react to possible lines of argument.(4) These historical and predictive uses of judicial history differ from the distinctively legal use proposed by the litigants. They desire to introduce judicial history as an interpretive source that will become part of the set of interpretive sources admissible to explain an authoritative legal text.

   Under current practice, this attempted use of judicial history would receive no hearing. Federal courts(5) do not consider the judiciary's internal records as interpretive sources bearing on the meaning of published opinions or judicially-promulgated rules.(6) In accord with this entrenched practice, current scholarship assumes that internal judicial materials are useful only as historical documentation, rather than as legally admissible authority. Mark Tushnet, for example, begins a paper on the Supreme Court's civil rights jurisprudence by stating that "[l]awyers and historians agree that almost everything we need to know about constitutional law is found in the Supreme Court's published opinions. Internal Court documents, like Justice Thurgood Marshall's papers, tell us something about the dynamics within the Court but relatively little about constitutional law."(7)

   Yet the twin assumptions that judicial history can provide no interpretive aid and should not be consulted in the interpretation of judicially-promulgated texts ought to be deeply puzzling. The backdrop for these assumptions is a legal system that often interprets controlling legal texts in the light of "official history": documents generated within the institution that promulgated a disputed legal text during the course of the text's creation.(8) Courts regularly consult originalist materials to construe constitutional text, legislative history to construe statutes, travaux preparatoires (negotiating and drafting history) to construe treaties, and so forth.(9) In none of these domains do courts always consult internal materials; the practice is in each case intermittent and subject to criticism.(10) Nonetheless, that courts have at some times and under some circumstances consulted internal materials across all of these domains throws the puzzling exclusion(11) of internal judicial history into sharp relief.

   And it seems clear that judicial history might, in at least some cases and on some interpretive premises, provide the same sort of aid that the other forms of official history are said to provide. Tushnet gives the example of United States Postal Service Board of Governors v. Aikens,(12) in which Justice Rehnquist circulated a draft opinion that would have distinguished white-collar from blue-collar workers for purposes of Title VII's ban on racial discrimination in employment. After Justice Marshall circulated a draft dissent, however, Rehnquist could not gain a majority for his own draft and eventually retracted it in favor of a fact-specific opinion that was published for the Court. Tushnet says that the Justices' consideration, and arguable rejection of, the proposed distinction between white-collar and blue-collar employees lacks any legal significance.(13) But why? If a lower court were subsequently tempted to interpret the published opinion as implicitly resting on the rejected distinction, shouldn't the internal evidence to the contrary be admissible? One obvious analogy is to the rejected-proposal doctrine in statutory interpretation, under which courts sometimes decline to interpret statutes in a manner identical to proposed bills previously rejected by the legislature.(14) The analogy does not hold in any simple way; judicial opinions are not statutes, and judicial history is not legislative history. Moreover, the rejected-proposal doctrine may well be misguided for any number of formal and functional reasons.(15) But if the doctrine applies in other interpretive settings it requires substantive argument, rather than simple assertion, to show that it should not apply in this setting as well.(16)

   The law's distinctive treatment of judicial history is not a topic of current debate. But we ought to be able to give reasons for this major asymmetry in our interpretive practices. The untheorized exclusion of judicial history deserves rational scrutiny, and this is so even if that exclusion can indeed be justified on rational grounds. And the judicial history puzzle may tell us something, perhaps a good deal, about the more familiar debates over legislative history and similar materials. The exclusion of judicial history is precisely the sort of unquestioned assumption that defines the contours of our interpretive practices. Accordingly, I shall both subject the exclusion of judicial history to critical evaluation and use the judicial-history puzzle to illuminate persistent debates over the use of official history in other interpretive domains.

   My conclusions are as follows. First, I support the widespread assumption that judicial history should not be used as an interpretive source. But the arguments for that position are surprisingly complex. The practice of exclusion cannot be derived from any clean formal rule or neutral principle; there is only a cluster of structural and institutional arguments to the effect that consulting judicial history would inflict unacceptable harms upon the federal judiciary's decisionmaking processes. Second, I touch upon a range of other official-history debates--principally debates about the use of legislative history, presidential signing statements, and the advisory committee notes to the federal rules of evidence and procedure--and suggest that the judicial history puzzle can illuminate those questions. For example, the exclusion of judicial history reveals grave weaknesses in the most common arguments for judicial resort to legislative history. Those arguments entail that judicial history should be an admissible source as well, a consequence that would contradict settled interpretive practices and commitments

   Part II presents a straightforward argument for consulting judicial history as an aid to the interpretation of judicially created texts. Section A argues that under the interpretive criteria said to justify resort to other types of official history, internal judicial materials might plausibly provide helpful interpretive guidance when a judicial opinion or judicially promulgated rule is ambiguous, opaque, or otherwise creates an interpretive quandary. For example, judicial history could supply either revealing evidence of the intentions of the judges who created the text or helpful context for interpreting the text itself. Section B examines some current judicial practices that support recourse to judicial history. Although courts do not consult internal judicial history, they draw upon external judicial materials such as litigants' briefs, oral argument transcripts, and the notes of adjunct judicial committees. Those sources are declared relevant on premises that would, if consistently applied, make judicial history admissible either as evidence of judicial intention or as interpretive context.

   Part III considers a series of normative arguments that justify the exclusion of judicial history. The justifications are drawn from the text of Article III and its original understanding (Sections A and B) and from considerations of the federal judiciary's institutional role in the constitutional structure (Sections C and D). The structural and institutional justifications prove the most persuasive. Resort to judicial history would distort the Court's internal deliberations, render the history unreliable, and undermine various rule of law norms associated with judicial decisionmaking. To be sure, none of the structural arguments, taken by itself, fully justifies the entrenched practice. Rather, that practice is best understood to rest on a complex of rationales, with the practice mapping imperfectly onto any one of those rationales. But it is no objection to a doctrine that it rests on several imperfect bases rather than on one dominant theory.(17)

   Part IV draws upon the judicial history puzzle to illustrate some of the conditions that plausible arguments about particular categories of official history will satisfy, using the comparison between judicial and legislative history as a running example. The considerations discussed in Parts II and III suggest that plausible arguments about official history will display two features: localism and consistency. First, those arguments will derive not from any global account of the role of official history as such, but from more limited arguments (either formal or institutional) about particular types of official history. Second, plausible positions in any local debate will prove consistent in the minimal sense that the position, if transposed to another debate and...