On Legislative History—Supreme Court Faceoff Between Conservative and Liberal Justices with Comments (6/16/26)

In FS Credit Opportunities Corp.v. Saba Capital Master Fund, Ltd., 608 U. S. ____ (2026), decided June 22, 2026, SC here* and GS here**, the conservative and liberal Justices fussed about the proper role of legislative history in statutory interpretation. That fussing interested me because I had recently made substantial revisions to that fuss in my 2026 Working Draft of my Federal Tax Procedure book (Student and Practitioner Editions). I don’t think the fussing in FS Credit adds anything meaningful to the discussion, but it does offer a handy opportunity for those interested in the issue to be up to date on the Supreme Court’s views. So, I thought that, in addition to notifying readers and providing links to the Opinions, I would offer the current treatment of the issue from the Working Draft (due for publication on the SSRN platform in early August 2026). The Practitioner Working Draft (with text and footnotes) may be viewed or downloaded here. The Student edition is the Practitioner Edition text without the footnotes, so for readers generally I just copy and paste here the text only:

(5)    Legislative History in Statutory Interpretation.

           The pre-enactment history of enacted statutory text may be important in interpreting the enacted text (just as, for example, the history of the drafting and ratification of the Constitution may guide its interpretation). Relevant history is often discussed in two broad categories: Statutory History and Legislative History. (Actually, statutory history (defined below) is a subset of legislative history, but it is not uncommon to treat the two as separate categories.) Both types of history stop upon enactment of the statutory text being interpreted; at least conceptually, since the focus is on the meaning of the text upon enactment, there is no such concept as subsequent legislative history which at best would be comments on the meaning of the previously enacted text. (I return to subsequent legislative history below, beginning on p. 34.)

           Statutory history can include two broad categories: (i) enacted text only, including enacted text that has been revised by enacted text over time (call this category “enacted statutory history”); and (ii) the changes in the text of bills as they move through the legislative process to enactment (“drafting history”). Enacted statutory history considers only enacted text and any interpretive inferences that may be drawn from enacted text; drafting history also considers drafts of the text as it moved and changed through the legislative process. Textualists use enacted statutory history to draw inferences of enacted text meaning. Sometimes, textualists resort to drafting history treating it somewhat like enacted statutory history in drawing interpretive inferences.

           Legislative History includes all documents the legislature may have generated or considered in enacting the statutory text that might permit inferences as to the meaning of the enacted statutory text. Legislative history is the course of congressional consideration in identifying the need for legislation, drafting or revising the bills (the “drafting history” and statutory history for enacted statutory text), expressions by persons involved in the process as to how they understood the text of the bills, and the final statutory text. The principal sources of legislative history for statutes are the drafting history and the committee reports which I discuss below. (For tax legislation, the legislative history may also include proposals from Treasury (analogous to drafting history) and Treasury’s explanation of the proposals, most commonly along with Treasury’s annual budget request with tax proposals referred to as the Green Book.) Other sources include committee hearings, statements made on the floor of Congress in debating the legislation, and submissions to Congress by the executive branch. There is a long and substantial history of judicial use of legislative history in statutory interpretation, particularly in the tax area.

           Legislative history is a broad term, with some legislative history more persuasive than others (at least for those willing to consider legislative history). In terms of the legislative process and reliable indicators of the meaning of statutory text, the committee reports accompanying legislation are generally viewed (at least by those willing to consider legislative history) as a reliable form of legislative history (eclipsed only by conference committee reports discussed below). In both houses, proposed legislation is generally first considered substantively in committees which generally give the most detailed consideration of proposed statutory text; those committees often hold hearings to discuss legislative proposals and then offer reports explaining the proposed statutory text that they send to the floors of their respective Houses. The meaning of particular statutory text that is then enacted may be discussed in those hearings or in the committee reports.

           For tax legislation, because of the historic influence of the tax writing committees and their staffs and the assistance of the Joint Committee on Taxation (“JCT”), the committee reports of the House Ways and Means Committee and the Senate Finance Committee have been the most frequently used legislative history guide to interpreting the statutory text.

           Often said to rank even higher than committee reports in authoritativeness is the particular form of legislative history accompanying and explaining statutory text produced in a Conference Committee to work out differences in legislation between the two Houses of Congress. In considering legislative history in a particular case, it is important to understand the legislative processes that produced the legislative history and whether those processes make the legislative history a reliable indicator of the actual or deemed meaning of the statutory text.

          The role, if any, of legislative history (other than statutory history) has been a flashpoint for hard-core textualists. The textualist concept, championed by and closely identified with Justice Scalia, is that only the text of the statute was enacted by Congress. The legislative history was not enacted by Congress and thus, at most, represents only the views of the subset of members of Congress who produced the legislative history; moreover, in the eyes of some, legislative history may be slanted by “technocrats, lobbyists, and attorneys” with an agenda other than faithfully discussing the text enacted. For textualists, use of material extraneous to the statutory text (including, most prominently, legislative history) “greatly increases the scope of manipulated interpretation, making possible some interpretations that the traditional rules of constructions could never possibly support.” However, even textualists sometimes cite legislative history but claim to avoid the use of legislative history to “muddy the meaning of the clear statutory language.” In other words, textualists–at least true textualists–may use legislative history when it confirms their determination of the text’s plain or ordinary meaning but claim not to use legislative history when the legislative history is inconsistent with their determination of the plain or ordinary meaning. Perhaps inconsistently, textualists might use legislative history to read the statutory text in light of the mischief or problem Congress sought to address by the statutory text. Even more broadly, I am not sure that textualists have, apart from ideology, explored the beneficial interpretive uses of legislative history.

          I ask the basic question: Is legislative history at least relevant evidence that should be considered in making important decisions as to statutory text meaning? I think it is relevant evidence with the important caveat that, for relevant evidence in factfinding and lawfinding, relevant evidence should be considered for what it is worth. I am guided by the concepts in Federal Rules of Evidence 401 and 402 that relevant evidence (any evidence making the fact more or less probable) is admissible unless otherwise prohibited. Factfinders–whether juries or judges–know how to give relevant evidence its proper role in fact-finding. The same is true in lawfinding. Judges know how to weed the wheat from the chaff in considering relevant evidence of the law. No one engaging in the discussion of the use of legislative history has ever said that legislative history must be accepted at face value and cannot be discounted as appropriate for its value in interpreting statutory text. But to say by fiat that some relevant evidence should not be even considered is stupid, just like saying that factfinding should not even consider relevant factual evidence. Considering all relevant evidence of statutory text and judiciously choosing the persuasive evidence is what judges should do (and, of course, that is what humans should aspire to do in all of their decisionmaking).

          Now for the more lawyerly analysis of the issue, consider the following:

          •       Some have noted that the textualists’ claims about legislative history are in some tension with their claims about the “originalism” interpretive strategies that textualists claim to use. Legislative history would at least be some evidence of “ordinary or public meaning” of the statutory words at the time.

          •       Those jurists (usually textualists and originalists) who loudly decry legislative history in statutory interpretation have no problem using Constitutional history, most prominently the Federalist Papers, Madison’s notes, and discussion state ratification convention, in Constitutional interpretation. The obvious inconsistency does not seem to bother them.

          •       The Court’s rejection of Chevron Deference in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) may resurrect the use of legislative history.  I discuss Loper Bright and its ripples in more detail beginning on p. 107. I offer here only a high-level summary for the possibility that Loper Bright might result in more judicial use of legislative history: Loper Bright says that a court must reach the best interpretation of statutory text no matter how ambiguous the text. (Careful readers will note that saying there is the determinable best interpretation of ambiguous text is an oxymoron because ambiguous text, by definition, does not permit determining the best interpretation; set that conundrum aside for the moment because I deal with it in the discussion of Loper Bright.) If a court applies the best interpretive tools other than legislative history, and still believes the statute is ambiguous as between (or among) the proffered interpretations, would a court not at least consider legislative history for whatever value it offers to resolve the remaining ambiguity? I just ask the question as at least one other has also.

          So, where are we now on the judicial use on legislative history in statutory interpretation? Supreme Court Justices sparred on this issue in FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., 608 U. S. ____ (2026), decided June 22, 2026. The conservative majority in an opinion of the Court written by Justice Barrett (with the conservative Justices concurring) held, consistent with conservative dogma, that legislative history other than statutory history should not be considered in statutory interpretation for reasons such as those noted above. The liberal minority of three, in a “principal” dissenting opinion written by Justice Jackson said that legislative history could be relevant and should be considered when it is relevant to the task of statutory interpretation. I don’t think this sparring in FS Credit adds anything to the discussion that has not been developed before but, I suppose, it is a handy current source to state the current (as of the date of the Opinions) status of the commotion.

          I do want to address a favorite “talking point” for textualists, repeated by the conservative majority in FS Credit, as an argument for rejecting legislative history in statutory interpretation. The claim is that use of legislative history permits judges to cherry pick legislative history–the pejorative metaphor is looking over the crowd and picking your friends. That claim is nonsense (just as the conservative majority made similar nonsense, even false, claims in Loper Bright). In factfinding and in lawfinding, judges should consider all the relevant evidence; that does not mean that all the relevant evidence should control the outcome; some relevant evidence is more persuasive than others. Thus, for example, in their research leading to a legal decision, judges consider relevant case authority. That in theory permits them, if they are so inclined, to pick their “friends” among the cases based on their policy preferences rather than with sound judicial judgment. That is true of the whole judicial enterprise of factfinding and lawfinding, yet, as FRE Rules 401 and 402 show, our history has shown that relevant evidence should be considered for whatever persuasive value it has.

          I also address one issue of the persuasive value of legislative history. Not all legislative history is equally persuasive in statutory interpretation. In the Circuit Courts, a study based on a dataset of more than 240,000 majority opinions indicated that even textualist judges most likely to be influenced by Justice Scalia’s rejection of legislative history tend to use the more persuasive types of legislative history (conference and committee reports). The authors thus conclude the judges “appear to have accepted the hierarchy of legislative materials that had previously prevailed and that Scalia had rejected.” Justice Scalia, the authors claim, “influenced, but he did not persuade.” An outstanding article by Professor George K. Yin, former Chief of Staff at the JCT debunked Justice Scalia’s claims about legislative history for tax legislation because of the expertise offered by the JCT and care generally taken in crafting the tax statutes and legislative history. Finally, one author has noted that the Supreme Court often smuggles in legislative history by relying on cases which relied on legislative history.

* The SC link is to the Slip Opinion. The Supreme Court compiles Slip Opinions into Preliminary Prints and then compiles the Preliminary Prints into for the final U.S. Reports. The Slip Opinions are stand-alone pdfs for the opinion(s) in the case. The Preliminary Prints are single pdfs with what is expected to be the page numbers in the final U.S. Reports, thus permitting convenient local page citations. The U.S. Reports then compile the Preliminary Prints for the indicated volume.

**GS refers to Google Scholar version of the Slip Opinion appearing in GS shortly after the Slip Opinions are handed down. GS does not provide the local pagination (the page number of the pdf of the Slip Opinion). I generally provide the Slip Opinion page number, so those wanting to check my page citations should use the SC Slip Opinion.