The confounding common law originalism in recent Supreme Court statutory interpretation: implications for the legislative history debate and beyond.

AuthorSchacter, Jane S.

Recent scholarship on the Supreme Court's statutory interpretation practices has focused on originalist vs. nonoriginalist approaches to legislative language, with special attention to the rise of "textualism" as a leading form of originalist interpretation. One important aspect of the perceived textualist ascendance is a decline in the Court's use of legislative history, an interpretive resource grounded in the more traditional "intentionalist" approach to statute. In her empirical study of the interpretive resources applied by the Court in its October 1996 Term decisions addressing statutory questions, Professor Jane Schacter detects judicial trends that run counter to the academic literature. Professor Schacter's study demonstrates that, contrary to recent empirical analyses finding minimal usage of legislative history by the Justices, the Court invoked legislative history in nearly 50% of the statutory interpretation cases decided in 1996. Based on an analysis of other sources used by the Court, Professor Schacter argues that the Court's recent statutory jurisprudence confounds the conventional interpretive divides that structure much of the contemporary scholarship, reflecting instead what she calls "common law originalism." This approach is evidenced by the Court's extensive use of not only statutory language, but precedent, judicially-selected policy norms, other statutes (including state statutes), canons of construction, and secondary sources, among other interpretive resources. Professor Schacter argues that recognizing the common law originalism reflected in the Court's decisions exposes weaknesses in both recent textualist critiques of legislative history and in the conventional understanding of controversies about statutory interpretation.


It is common, even mundane, to observe that the Supreme Court's approach to statutory interpretation has become increasingly "textualist" in character--that is, more oriented to statutory language and the assertedly "objective" meaning of statutory text than to the collective subjective intent behind the legislation.(1) A principal piece of evidence marshaled in support of this characterization is a decline in the Court's use of legislative history in construing federal laws.(2) Because committee reports, floor statements, and other materials generated during the legislative process traditionally appear in statutory interpretation opinions as evidence of the controlling legislative intent, the Court's declining use of these materials in construing ambiguous statutory provisions has generally been taken to signal a move away from "intentionalism" and toward the "new textualism" associated most prominently with Justice Antonin Scalia. Justice Scalia, legislative history's most conspicuous critic,(3) vigorously challenges the legitimacy of legislative history as an "authoritative indication" of statutory meaning.(4) Because Scalia and others claim that the judicial search for legislative intent in general, and the use of legislative history as evidence of that intent in particular, is inconsistent with the constitutionally prescribed roles of both the courts and Congress,(5) the legislative history question has spilled over the confines of statutory interpretation into a larger debate about institutional characteristics and roles.(6)

The embattled character of legislative history in the Supreme Court has been widely viewed as a proxy for the rise of the "new textualism," and has therefore commanded extended scholarly attention.(7) Most of this commentary has been normative in nature, weighing the strengths and weaknesses of the major critiques of legislative history.(8) A smaller body of work has ventured into empirical terrain and has charted the declining use of legislative history in the Supreme Court by examining the Court's statutory cases and noting the trend away from citing committee reports, floor debates, and other sources reflecting the statutory background.(9)

In this paper, I pursue a somewhat different path--what I think of as empirically-informed normative analysis. My point of departure is the 45 statutory interpretation decisions in the October 1996 Term of the Supreme Court. As in previous empirical studies by Professor Thomas Merrill and Judge Patricia Wald,(10) I use the statutory interpretation opinions in a recent Supreme Court Term to assess the extent to which legislative history continues to figure prominently in the Court's interpretive approach. Unlike these other analyses, however, I also use the cases to analyze the extent to which the Court uses a broad range of other interpretive resources in these opinions.(11) My purpose in doing so is to generate a picture of the Court's interpretive practices that is more textured and nuanced than one based on citations to legislative history alone, and to use this richer empirical portrait to assess the critiques of legislative history in the context of the Court's demonstrated interpretive practices. I seek to consider the critiques of legislative history not on an abstract plane that brackets empirical questions and is premised upon interpretive aspirations, but within the particularized context of what the cases reveal about the Court's statutory interpretation opinions.

In the end, I draw three principal conclusions. First, when measured against other empirical analyses, the 1996 Term reflects some resurgence in the use of legislative history and an apparent decline in another benchmark of the new textualism--citations to the dictionary. Second, and more interesting, there are significant features in the Court's interpretive jurisprudence that confound the interpretive divides that structure so much contemporary scholarship. It is standard, for example, to distinguish among different forms of originalism in statutory construction, and to draw an important line between "textualism" on the one hand, and "intentionalism" or "purposivism" on the other.(12) Similarly, in his recent book, Justice Scalia set textualism, his preferred brand of originalism, against its asserted opposite--the common law mode.(13) My analysis of the recent opinions suggests that these categories are far too stylized to capture the Court's interpretive practices which, in fact, cut across these familiar categories. I argue that the idea of "common law originalism" better describes the approach taken in the Court's recent opinions, and that it describes equally well cases that do and do not cite legislative history. In fact, the profile of legislative history cases and nonlegislative history cases is strikingly similar. In both groups of cases from the 1996 Term, the Court's methodology is "originalist" in that it uses statutory language as an interpretive anchor and focal point. At the same time, however, this methodology bears significant traces of the common law form because it draws from an array of judicially-created sources to delineate the range of plausible textual meanings and then to select from among them. Across the range of the Term's cases, I argue, this approach best describes the Justices' opinions, whether they or others would characterize their approach as "textualist," "intentionalist," or otherwise. In charting this common law originalism, I place special emphasis on the Justices' consistent use of what I call judicially-selected policy norms, and I argue that previous accounts of statutory interpretation have failed to identify and appreciate the significance of these norms.

Third, when situated within the empirical context created by the study, the critique of legislative history does not fare well. Given what common law originalism entails, and what the Justices are regularly doing in statutory interpretation cases, it is difficult to sustain the basic premises of the attack on legislative history. Moreover, if the common law originalism that I find characteristic of the Term's cases has staying power, it will have significant implications for statutory interpretation more generally. It will suggest that instead of taking at face value the lines between "textualism" and either "intentionalism," "purposivism," "dynamic interpretation," or interpretation in a common law mode, we should acknowledge both the limitations in those lines and the substantial residual policymaking discretion retained by judges marching under any interpretive banner. Shifting the focus in this way suggests that the use of legislative history and other interpretive resources should be assessed not for their capacity to reveal accurately a singularly correct original meaning, but instead for their ability to advance the more eclectic, policy-oriented process of assigning meaning to ambiguous legislative directives.

In Part I, I describe the challenge to the use of legislative history and then review previous empirical analyses of the use of legislative history in the Supreme Court. In Part II, I present the data about legislative history and a wide range of other interpretive resources in the 1996 Term. I argue in this section that the idea of common law originalism better describes the current Court's interpretive methodology than do the traditional categories that dominate recent scholarship on statutory interpretation. In Part III, I consider the implications of the data and common law originalism for the legislative history debate and beyond.


    1. The Challenge to Legislative History in Statutory Interpretation

      The challenge to legislative history as a legitimate interpretive resource for judges is part of a larger challenge to the search for legislative intent that has traditionally framed judicial interpretation of statutes. On the traditional "intentionalist" account, language is the best evidence of the legislative intent underlying a statute, but judges may legitimately consult materials like committee reports or floor statements in...

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