EXPLAINING NORMALIZATION: THE NEW ADMINISTRATIVE STATE
The progressive ideology of the Roosevelt appointees was a major but not sufficient cause of the interpretive revolution. Its insufficiency, as noted above, is evident from the tensions between progressive theory and judicial practice and from the pre-Roosevelt Justices' change in behavior.
But even if the shift toward legislative history had occurred exclusively in the opinions of the Roosevelt Justices, and even if those Justices' use of legislative history had corresponded perfectly with cutting-edge progressive thought, that still would not be enough to explain the interpretive revolution, for this was not the kind of revolution that judges, however intellectually committed, could effectuate on their own. Congress was a remarkably complex body that produced a rich, sophisticated, confusing, and voluminous discourse. Serious, sustained, and sympathetic engagement with that discourse--especially in the holistic manner urged by the progressive jurists in their focus on general intent--required an intimacy with Congress, a sophistication about its processes, and an institutional capacity to monitor its sheer output that had rarely, if ever, been seen in American litigation.
The initiative for systematically briefing congressional discourse did not come--could never have come--from ordinary lawyers. It originated instead from the New Deal administrative state, vested with unprecedented capability to process and analyze congressional discourse and translate it into legal argument. The federal leviathan provided the indispensable institutional basis for what might seem, on the surface, to be simply a change in judges' ideas.
The Court's Reliance on the Federal Government for Legislative History
To appreciate the importance of the federal government in the Court's use of legislative history, we must first recognize that the federal government was an overwhelmingly familiar presence before the Court in federal statutory cases during the late 1930s and especially the early 1940s. As my research team and I found, in 1936-39, 68% of federal statutory cases were briefed by the federal government, usually as a party, but sometimes as an amicus curiae. In 1940-45, during the surge, the proportion was even higher, at 78%. (144)
Further, the Court, especially during the surge, was far more inclined to cite legislative history in federal statutory cases that were briefed by the federal government than in those without a federal brief. In 1940-45, the number of legislative history citations per statutory case was 3.9 for those with federal briefs and only 2.2 for those without, and the proportion of statutory cases citing any legislative history was 50% for those with federal briefs and only 31% for those without. Notably, the divergence between cases with federal briefs and those without was less clear prior to 1940. In 1936-39, the number of legislative history citations per case was 0.9 for statutory cases with federal briefs and 1.0 for those without (though there was a larger divergence in the proportion of statutory cases citing any legislative history: 28% for those with federal briefs and 14% for those without).
Thus, during the surge of legislative history in 1940-45, the Court was hearing from the federal government in a large and increasing majority of statutory cases, and the Justices' citations were becoming more concentrated in those federally briefed cases. Of all the legislative history citations appearing in federal statutory cases in 1940-45, 86% were in cases with federal briefs.
This evidence suggests that the Court was leaning on the federal government to provide it with legislative history research. To test that possibility, I took a sample of all federal statutory cases citing legislative history in 1940-45, (145) and I had research assistants determine whether the Justices' citations in those cases "matched" the citations appearing in the briefs that were submitted. (146)
The results are as follows. First consider the federally briefed cases (which, to reiterate, were 78% of all federal statutory cases and accounted for 86% of all legislative history citations). In these cases, I found, through my sample, 22% of the citations matched both the federal brief and at least one non-federal brief (such as the brief of a private party or state government); 33% of the citations matched the federal brief and no other brief; 10% of the citations matched at least one non-federal brief but not the federal brief; and 34% of the citations matched no brief (suggesting they arose from the Court's own research).
Thus, the Justices relied far more on federal government lawyers for legislative history than on any other lawyers arguing before them. It was 50% more common for the Justices to take a citation exclusively from the federal lawyers than to take one jointly from federal lawyers and non-federal lawyers. And it was more than three times more common for the Justices to take a citation exclusively from federal lawyers than to take one exclusively from nonfederal lawyers. (147) (The high proportion of citations apparently arising from the Court's own research is also interesting; I shall have more to say about that later. (148))
For further confirmation of federal lawyers' dominance over other lawyers in providing legislative history, let us now consider the cases without federal briefs. These, again, represented only 22% of federal statutory cases and accounted for only 14% of all legislative history citations. In these cases, I found, based on my sample, that 45% of the citations appeared in at least one of the briefs, while 55% did not (suggesting they came from the Court's own research). That is, the Justices themselves provided a much higher proportion of the citations (55%) than they did in federally briefed cases (34%), presumably because they did not have the federal government to help them. This helps explain the fact (noted earlier) that the Justices cited legislative history only about half as much in non-federally-briefed cases.
Though the surviving case files of the Justices from this period are mostly thin, there is one archival document confirming that at least one member of the Court viewed the federal government as the "go-to" source of legislative history. In December 1941--two full years into the surge--Justice Reed and his clerk were working on a case between Alabama food-safety officials and a butter-making company. The question was whether certain federal food-safety statutes should be construed to preempt Alabama laws on the subject. Lawyers for Alabama and the company briefed the case, but the federal government was not a party and submitted no brief. Reed wrote to his clerk:
Please check the reports [i.e., committee reports] and Congressional debates to see what was the purpose of the adoption by the [federal] Renovated Butter Act of the details of the [federal] Meat Inspection Act. It may be that this was in the briefs but as there have been no Government briefs, it is not so likely that it will be. (149) By "Government briefs," Reed clearly meant federal government briefs, for the Alabama attorney general had briefed the case.
The Difficulty of Briefing Legislative History
To understand why the federal government was so dominant in providing legislative history to the Court, we must first appreciate the extraordinary difficulty of employing that material in legal argument, especially as of the 1940s. Compared to case law and statutory text, documents of legislative history were much harder to identify, obtain, and use. The people who wrote judicial opinions and statutory text wrote those documents with the primary purpose of maldng them usable in future legal decision-making, and the West Company in the 1880s had built an infrastructure to increase that usability. By contrast, the people who produced legislative history had far more diverse purposes; there was no infrastructure remotely comparable to the West Digest, and building any such thing would have been a Herculean task. (150)
Begin by considering the textbook version of the process of enacting a statute. In one chamber, a member introduced a bill. The chamber's parliamentarian gave the bill a number (such as S. 123 or H.R. 456) and referred it to a committee. The committee might hold hearings on the bill and print documents relevant to it, such as executive branch recommendations. The committee then sent the bill back to the chamber, with a report. The whole chamber then took up the bill, debated it, and (possibly) amended it, before finally passing it. The bill then went to the other chamber, where the textbook process required all the same steps. If the second chamber passed a version of the bill that was not identical to the first chamber's, the two chambers could appoint a conference committee, which then issued a report of its own. Thus, even the textbook process, applied to a single bill, could produce many documents: committee reports in both chambers, committee hearings and documents in both chambers, floor debates and amendments in both chambers, and a conference report, not to mention all the successive versions of the bill in both chambers.
Identifying all the relevant documents in the textbook process for a single bill was mostly easy, though not entirely. Starting with the statute, one could quickly find the number of the bill that had become that statute. One could then look up the bill number in the index to the Congressional Record for the Congress that enacted the statute and find references to all committee reports, floor proceedings, and conference reports on that bill. But the Record index did not cover hearings. Locating hearings required a more cumbersome process using a different (and less widely available) index, though it was still doable. (151)
The main problem in identifying documents was that the textbook process for a single...