Confirmatory Legislative History

January 19th, 2011

Professor Brudney has an interesting piece on theĀ usefulnessĀ of confirmatory legislative history–that is legislative history that conveniently mirrors what a Judge thinks is the appropriate understanding of a statute. Here is the abstract:

The Supreme Court and lower courts often rely on legislative history to confirm or reinforce what they already have concluded is the plain meaning of statutory text. The Roberts Court has done so on numerous occasions since 2006: six of these majorities, including four cases decided during the 2009 Term, have drawn sharp rebukes from Justice Scalia.

This Essay maintains that persistent judicial reliance on confirmatory history reflects important shortcomings in the textualist approach. When courts move beyond the presumptively clear meaning of statutory language, they recognize – even if implicitly – that assertions of clarity can too often serve as either a mirage or a refuge. Clarity may be a mirage because apparently precise words or phrases often give rise to conflicting “plain meanings,” and also because apparently assured readers of those words or phrases are conditioned to perceive clarity based on their own specialized training, background, and level of self-confidence. Assertions of clarity may serve as a refuge in that they obviate the need for judges to provide more complete explanations for their decisions. This aspiration for completeness, although not embraced by Justice Scalia, is important to many other judges as they seek to explain adjudicative resolutions before the diverse audiences to whom they are responsive and responsible.

I made a similar point in This Lemon comes as a Lemon:

Assuming that a legislature can have an intent, and a judge knows whose statements most accurately reflect the intent of the body, relying on legislative history to recreate this intent abounds with unreliability. The use of legislative history forces a tradeoff between reliability and usefulness.100 On the one hand, committee reports that confirm the plain meaning of a statutory text are very reliable, but are not particularly useful, as an interpreter could come to the same conclusion in the absence of the report. Conversely, when a committee report takes a stand on issue where the text is not clear, it is very useful to supply meaning, but is not reliable, as it can be the result of an agenda to introduce a specific meaning not agreed upon by the entire body.