Article On Justice Scalia's Modest Success and/or Failure to Persuade Other Judges to Reject Legislative History in Statutory Interpretation (5/16/20)

Readers of this blog may be interested in a recent Draft of a Law Review article recently posted to SSRN.  Stuart Minor Benjamin and Kristen Renberg, The Paradoxical Impact of Scalia's Campaign Against Legislative History 157 (SSRN 2020), for publication in Cornell Law Review, Vol. 105, No. 4, 2020, here; see also the SSRN Abstract, here,; and a summary of the article in Stuart Benjamin, In His Advocacy Against Legislative History, Did Scalia Get Half a Loaf, or None at All? (The Volokh Conspiracy 5/15/20), here.

Here is the SSRN Abstract:

Beginning in 1985, Judge and then Justice Antonin 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. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative history than their Democratic counterparts, and that judges who joined the bench during or after these attacks were more likely to be influenced than their counterparts who were appointed before the attacks. Utilizing a dataset containing all published federal appellate court majority opinions between 1965 and 2011 (more than 240,000 opinions), we find that, for both hypotheses, the judges whom we would expect to be more influenced by the attacks on legislative history were in fact less likely than their counterparts to cite statements from floor debates or committee hearings, traditionally regarded as among the least reliable forms of legislative history. But they were more likely than their counterparts to cite committee reports, traditionally regarded as the most reliable form of legislative history. 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.

And here is the Conclusion from the Article (pp. 158-159, footnotes omitted):

CONCLUSION 

We began this article with a quotation from Justice Kagan that Justice Scalia “taught everybody how to do statutory interpretation differently” and that “we’re all textualists now.” How do we assess those claims, and the success of Scalia’s campaign against legislative history? 

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.