Leviathan and interpretive revolution: the administrative state, the judiciary, and the rise of legislative history, 1890-1950.

• Author: Parrillo, Nicholas R.
• Position: Introduction through II. Explaining Normalization: New Justices with New Ideas, p. 266-315

ARTICLE CONTENTS INTRODUCTION I. THE TIMING OF NORMALIZATION A. Quantitative Evidence B. Qualitative Evidence II. EXPLAINING NORMALIZATION: NEW JUSTICES WITH NEW IDEAS III. EXPLAINING NORMALIZATION: THE NEW ADMINISTRATIVE STATE A. The Court's Reliance on the Federal Government for Legislative History B. The Difficulty of Briefing Legislative History C. The Federal Government's Unique Capacity to Brief Legislative History D. The Federal Government's Turn Toward Briefing Legislative History E. Non-Federal Lawyers Briefing Legislative History: The Importance of Lobbyists F. The Court's Own Internal Research G. The Minimal Role of the Lower Courts IV. LEGISLATIVE HISTORY AS A STATIST TOOL OF INTERPRETATION A. Legislative History to Bless the Bureaucratic Agenda B. The Court Learns to Fight Fire with Fire C. The "Washington Lawyer" as Adjunct of the State and User of Legislative History D. Critics of Legislative History Statism: Frankfurter and Jackson V. CONCLUSION: THEN TO NOW APPENDIX I: METHODOLOGY APPENDIX II: LOBBYING CONNECTIONS OF LAWYERS AND LITIGANTS ON NON-FEDERAL BRIEFS HEAVILY CITING LEGISLATIVE HISTORY, 1938-41 INTRODUCTION

When a legislature enacts a statute, it leaves behind a history: the revisions that lawmakers made to the bill, the things they said about it during committee deliberations and floor debates, and the public input they officially received on it from experts and other witnesses. Should a court, when interpreting the act, consider that history?

For a generation, the field of American statutory interpretation has burned with controversy over this question. The controversy is a novelty of the last twenty-five years. In the 1980s, legislative history was uncontroversial and very common. It appeared in more than half the U.S. Supreme Court's opinions on federal statutes. (1) In the high courts of leading states like New York, it likewise appeared frequently. (2) Using this material meant that judges were accustomed to engaging actively and openly with legislators' discourse and policy reasoning. Beginning in the late 1980s, however, a movement of judges and lawyers--led by Antonin Scalia--began to argue that this familiar interpretive resource was pernicious and should be banished from the judicial system. They urged a textualist method of statutory interpretation that would ignore an act's legislative history and focus more narrowly on its words. The legislative history of an act, warned Scalia and his allies, was a devil's playground: it contained such a huge number of assertions about the act's meaning, and those assertions were so contradictory and so easily inserted by manipulative politicians or lobbyists, that willful judges could always find support for whatever personal preferences they wished to impose. Adherence to the ordinary meaning of the text--the words on which lawmakers formally voted according to constitutional procedures--would do better at keeping judges accountable to the democratic will. Critics responded that Scalia was a false prophet. His method, they said, would not deliver the determinacy he promised, for text was often ambiguous (or became ambiguous when overtaken by events unforeseen by lawmakers), so textualist judges could just as easily impose their preferences, and all the more insidiously, since they would do so under the apolitical cloak of "ordinary meaning." Besides, added the critics, legislation was meaningless without reference to policy, and what better source for understanding a statute's policy than legislative history? (3)

Whichever side is right, there is no doubt that judicial practice has moved dramatically in Scalia's direction (even if his colleagues have not formally converted to his principle of complete exclusion). The proportion of U.S. Supreme Court opinions citing legislative history in statutory cases has fallen by more than half since the 1980s. (4) The number of citations per statutory case has fallen even more steeply. (5) At the state level--where legislatures have recently begun publishing legislative history far more extensively than in the past-courts have drawn upon textualist ideas to limit the new material's use. (6) Even leading defenders of legislative history concede parts of the textualist critique and look back with some embarrassment on how freely and easily the federal courts used such material twenty-five years ago. (7) "[M]any contemporary courts," when they do cite legislative history, seem to "apologize" for doing so. (8)

We are living through what appears to be an interpretive revolution. But we do not fully understand what (for better or worse) we are losing by it. That is because we do not have an adequate account of how and why judicial reliance upon legislative history--the once-dominant method that is now under attack--came to dominance in the first place. Further, an account of legislative history's rise would provide us with a better understanding of how interpretive revolutions happen, which may be useful knowledge for those who want to consummate the present revolution and for those who want to prevent its consummation. The task of this Article is to provide that account.

To be sure, we do have a partial sense of the story, in some of its general outlines. Originally, English and American judges cited no legislative history, for none was available. In the early modern era, the English Houses of Parliament not only refrained from recording or publishing their debates but actually prohibited their publication, for the members feared the scrutiny of the crown and viewed themselves as an elite body that should be insulated from immediate popular pressure. (9) With no tradition of legislative openness in the mother country, the American colonial assemblies also did not publish their deliberations (10)

Eventually, however, English and American judges did have to confront the question of whether to use legislative history, for as both societies became more democratic, such material came to be published copiously. In 1771, Parliament began permitting publication of its debates, and by the mid-1800s, the famous Hansard company received public subsidies to publish them in great detail. (11) In the United States, Congress published its journal (a skeletal procedural record) (12) from 1789 onward and soon began allowing private printers to publish its floor debates. These early reports were sometimes incomplete, irregular, and even biased, but this changed in 1850 when the Congressional Globe became semi-official, publishing a complete and timely verbatim transcript, supported by a congressional subsidy. (13) Eventually Congress started doing the same thing itself, establishing the in-house Congressional Record in 1873. (14) The Record of the 46th Congress (1879-81) ran to 10,000 pages; of the 56th (1899-1901), to 10,000 again; of the 66th (1919-21), to 22,000; and of the 76th (1939-41), to 38,000. Meanwhile, Congress's committees began publishing reports on all the public bills they sent to the floor. The House made such reports mandatory in 1880, and Senate committees were issuing them on the majority of bills by about 1900. (15) These committee reports, combined with informative documents that committees ordered printed, made up a "Serial Set" that totaled 2,000 volumes by 1880, added another 2,000 by 1900, another 4,000 by 1920, and another 2,500 by 1940. And shortly after 1900, the committees began frequently publishing their hearings: the annual number stood at about 100 in 1900 and jumped into the range of 500-650 per year for 1910, 1920, 1930, and 1940. (16) (The penchant for publishing did not extend to the state legislatures: even in the 1940s, almost none of them had ever recorded their floor debates or committee hearings, or issued substantive reports of standing committees. (17)

Thus, English courts and U.S. federal courts had to decide whether to use the legislative history that was proliferating. The English judges shut their eyes to it. They had imposed an exclusionary rule in the era before 1771, when publication of parliamentary deliberations had been illegal, and they maintained that rule even as reports of the debates became lawful and available. (18) American judges and treatise--writers followed the English rule from the late 1700s through the mid-1800s. (19) Then, in the 1870s and 1880s, U.S. federal judges in a handful of cases made small, incremental departures from the rule. Next, in 1892, the U.S. Supreme Court in Church of the Holy Trinity v. United States (20) relied upon committee reports (among other interpretive tools) to override what it admitted to be the literal meaning of an act of Congress. (21) Holy Trinity would become the leading case for a new American rule that legislative history was permissible in statutory interpretation. (22) Meanwhile, English judges--plus those of Commonwealth countries like Canada and Australia--held fast to the exclusionary rule. They relaxed it only in the 1980s or later, and even now, they do not use legislative history as much as American courts. (23)

So much we know. What we lack is an account of how legislative history went from being a permissible tool of American statutory interpretation to being the normal, routine, and expected tool that it had become by the time of Scalia's attack. One might assume that, in an adversary system, permissibility automatically leads to normalization. That is, once the judiciary says it will consider a certain kind of source, lawyers will instantly compete with each other to cite ever more of that source. But nobody has proven that assumption with respect to legislative history. And it may well be wrong. The opinion in Holy Trinity itself did not consciously reject the English rule; it simply ignored it without comment. And, as some leading present-day scholars point out, legislative history is more (perhaps far more) difficult and costly for lawyers to research than other legal sources, such...