I have just uploaded to SSRN a draft of a forthcoming article I have coauthored with Kristen M. Renberg entitled The Paradoxical Impact of Scalia’s Campaign Against Legislative History. As many readers of this blog will know, in the mid-1980s Judge and then Justice Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should not invoke it. As he pithily summarized his long-held views in a 1996 case, “The text’s the thing. We should therefore ignore drafting history without discussing it, instead of after discussing it.”
Reactions to his attacks among other Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In response, most (mainly liberal) defenders of legislative history did not suggest that courts should freely cite to all legislative history. Instead they advocated what had been the most common approach until the 1970s – treating committee and conference reports as highly reliable and statements on the floor or in committee hearings as among the least reliable forms of legislative history.
Kristen and I investigated the citation practices of circuit court opinion authors. We had two hypotheses: 1) After Scalia began his attacks on legislative history, Republican judges would be more likely to adopt his position (by avoiding citations to legislative history) than their Democratic counterparts. In other words, judges nominated by Republican Presidents would cite legislative history less often than those nominated by Democratic Presidents. 2) Separately, post-Reagan (i.e., Reagan-and-later) judges would be more likely to adopt Scalia’s position than pre-Reagan judges would (so, e.g., H.W. Bush judges would cite legislative history less often than Nixon judges, and Clinton judges would cite legislative history less often than Carter judges).
The first of these hypotheses is a classic political science argument. Those who advocated for textualism and against legislative history were mainly political conservatives, so we might expect Republican judges to be influenced by those attacks more than their Democratic counterparts. The second hypothesis involves the diffusion of ideas and reflects my own experience as someone who went to law school not long after Scalia began his attacks. My experience as a clerk and a young lawyer was that most of the judges who started deciding cases long before Scalia began his attacks were not moved: they had figured out how they wanted to interpret statutes, and they were happy to cite committee reports, floor statements, etc. pretty freely. As Harold Leventhal, a D.C. Circuit judge prominent in the 1970s, famously summarized, “The use of legislative history [was] the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” However, judges who were relatively new to the bench when Scalia began his attacks, or who took the bench after he began his attacks, appeared to be significantly influenced by them. Simply stated, my experience suggested that post-Reagan judges seem to have been affected by his attacks more than pre-Reagan judges.
But those were just our hypotheses. What did the data show?
Using a dataset containing all published federal appellate court majority opinions between 1965 and 2011 (more than 240,000 opinions), we found only partial support for our hypotheses. Instead, our result was much more interesting than what we had hypothesized. Specifically, we found that the judges we expected to be most influenced by Scalia (Republicans and post-Reagan) were less likely to cite floor statements or committee hearings than were their counterparts. But the Republican and post-Reagan judges were more likely to cite to conference and committee reports than were their counterparts. The judges we expected to be influenced by Scalia accepted one element of his critique and rejected another element, even though he conceptualized those elements as part and parcel of a coherent textualist whole. The attacks on legislative history thus seem to have had the effect of pushing judges who might be expected to be influenced to (re)examine their treatment of legislative history but not, as Scalia had advocated, to ignore it. Instead, they adopted what had been the consensus approach for most of the twentieth century. Scalia influenced, but he did not persuade.
What to make of this? Here is most of our conclusion:
One way of looking at the data we present is that Scalia had meaningful success – he got half a loaf, and half a loaf is significant. He attacked a practice he deemed unprincipled, and although circuit judges did not wholly accept his prescription, Republican and post-Reagan circuit judges who might be expected to be more influenced by Scalia did become more careful than their counterparts in their invocation of legislative history. He thus managed to destabilize the prevailing norms and push many judges to think more carefully about their use of legislative history.
On a different view, many judges may have been influenced by Scalia’s critique of the prevailing approach to legislative history, but they rejected his categorical hostility to it. Under Scalia’s approach, judges should treat legislative history as no more relevant than the weather in Washington D.C. the day the legislation was passed. Prominent liberal judges responded that legislative purpose is relevant, and that there is a principled way of invoking legislative history that looks more to committee reports and less to floor debates and statements at committee hearings. This debate led judges, and in particular Republican and post-Reagan judges, to consider these issues, and they sided with the prominent liberal judges: they concluded that text alone was not sufficient, and that committee reports should be invoked. On this view, Scalia largely failed.
Part of the choice between these positions depends on unknowable considerations. For instance, what would have happened if there had been no attacks on the use of legislative history? Perhaps liberal judges and law professors would have been happy for the 1970s pattern to persist, and so absent those attacks they would not have advocated for the pre-1970s consensus. And maybe the legislative history practices of the 1970s would have continued. Under those circumstances, we would say that the Scalia-led attacks on legislative history were fairly successful, because they brought about the rethinking among liberal judges and law professors noted above, and spurred the movement away from the least reliable forms of legislative history. On the other hand, perhaps even in the absence of any attacks on legislative history liberal judges and law professors would have made the same arguments for the pre-1970s consensus, and perhaps those arguments would have been exactly as successful as they turned out to be in reality. In that scenario, Scalia’s arguments against legislative history achieved nothing, as the same result would have occurred had Scalia never launched any attacks.
These scenarios, as counterfactuals, are of course unprovable. Beyond that, a conclusion about the degree to which Scalia succeeded or failed also depends on judgment calls with no obvious metric – notably, how much weight one puts on the influenced judges’ decrease in citations to floor debates or committee hearings versus their increase in citations to committee reports.
Thus the best answer to the question whether Scalia achieved modest success or instead failed is yes.