In His Advocacy Against Legislative History, Did Scalia Get Half a Loaf, or None at All?

Our new paper on circuit court judges’ citation practices produces surprising results.

|The Volokh Conspiracy |

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.

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  1. It’s not clear to me what groups exactly are being compared here.

    It looks like you have a 2 X 2 matrix – Republican/Democrat, pre-Reagan/Reagan and later.

    Is that what you worked with?

    1. We looked at Republican vs Democrat, and separately at pre-Reagan vs Reagan-or-later, and we made sure that the effects we found were independent. As we note in the paper, “when we control for the political party of the judges, the differences in citation behavior among pre- and post-Reagan cohorts are significant. And when we control for pre- and post-Reagan cohorts, the differences in citation behavior between Democratic and Republican judges are also significant. This leads us to conclude that the political party of a judge and the cohort have independent impacts on judges’ citation behavior.”

  2. Were you able to quantify when Judges used legislative history. I think there’s also a difference if Judges use it as their go-to vs. as a last resort when all other methods fail.

    1. There was no methodology we were comfortable with for making that kind of determination. But remember that Scalia’s position was that legislative history should be ignored, period — it had the same relevance as the weather in Washington DC on the day the legislation was passed. So if you are following Scalia you aren’t citing legislative history.

      1. That’s fair. That being said (and strictly anecdotally speaking), I’ve seen a tendency in more recent cases to at least sheepishly cite to legislative history. I do think Justice Scalia had an impact in limiting the use of legislative history even if he failed in eliminating its use.

        But that would be difficult to quantify – at least without the entire project being a massive undertaking.

  3. “He attacked a practice he deemed unprincipled. . . .”

    Who is Justice Scalia to say which source(s) a justice can use?

    As far as I know, there are no legal standards (constitutional, Supreme Court, etc), which state a justice must use (or is prohibited from using) certain sources in making their decisions.

    1. None is such a strong word. Ouija board?

    2. Who is Justice Scalia to say which source(s) a justice can use?

      The Supreme Court sets the rules of interpretation

      For instance, Justice Thomas, before he was a Justice, was a fan of conservative Catholic thinkers who argued that the Constitution should be interpreted consistently with “Natural Law”. (You can imagine why they liked this approach.)

      If 5 justices, heaven forbid, voted that the Constitution should, in fact, be interpreted consistent with natural law, then courts would be required to do so. As of now, a judge who uses natural law is likely to see his or her work reversed or criticized by higher courts, because natural law is not an accepted means of legal interpretation.

      So it matters a lot, but only if Scalia could have gotten 4 more votes for it.

    3. Uhh, he’s a person? Whatever other qualifications do you think someone needs?

      “As far as I know, there are no legal standards (constitutional, Supreme Court, etc), which state a justice must use (or is prohibited from using) certain sources in making their decisions.”

      This is false for a lot of reasons but set that aside. If Justice Scalia had criticized other judges for relying on, say, the voices in their heads to decide cases, or coin flips, would you ask “Who is Justice Scalia…”?

  4. 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

    A rare and precious illustration that, contrary to common belief, lawyers are human.

    The same principle applies to science :

    Max Planck : An important scientific innovation rarely makes its way by gradually winning over and converting its opponents: it rarely happens that Saul becomes Paul. What does happen is that its opponents gradually die out, and that the growing generation is familiarized with the ideas from the beginning: another instance of the fact that the future lies with the youth.

    And no doubt to farming, military affairs*, and pretty much everything else. Perhaps business is either an exception, or a hyperexample. Free markets kill dinosaurs very quickly indeed, but businesses wear corporate skins that may be used by new creatures, so we don’t notice it’s a new animal.

    1. We quoted Planck on exactly this point in discussing our hypothesis about Scalia’s impact on those who joined the bench as he was starting his attacks on legislative history.

      1. Ironically, Planck was quick to support Einstein’s Special Relativity (he was in fact the first prominent scientist to do so). The Nobel committee, perhaps understandably, not so much (citing only Einstein’s “services to Theoretical Physics, and especially … his discovery of the law of the photoelectric effect” in awarding him the 1922 Physics prize, 17 years after the publication of his Special theory, and 7 years after the General).

  5. What is the difference between examining and citing legislative history and citing the Federalist papers? Scalia cited and used the Federalist papers for his decisions on 2nd amendment rights. He also excluded text (first clause of the second amendment) and instead contextualized away the militia part based on common meaning of the time. In other words he looked for meaning and intent based on the historical context in which the text is written. To me that seems to be similar if not identical to examining legislative history.

    1. You got there first, see my comment below.

      Honestly, in some ways the Federalist Papers are even worse than legislative history. They were propaganda, and literally full of lies about what the Constitution actually did and contained, written by people whose only goal was to get the thing enacted.

      It would be like if, let’s say, Congress passed anti-abortion legislation and the Supreme Court looked to some flyers being passed out by pro-life groups promoting its passage as the guide to what the legislation means.

      1. Alas, Dilan, that is partly right. There is plenty of propaganda. From Hamilton especially. He said things in the Federalist that were the opposite of his long-standing previous views, and which he contradicted by his recommended policies afterward. Those were lies to promote ratification.

        One the other hand, Madison, in Federalist 10 looks 100% sincere.

        As with most assertions about history, it is best to stick to specifics, and stick to the record. Doing it that was is simply more informative, and more accurately informative, than sweeping with a broad brush.

        1. Stephen, here’s an analogy.

          Let’s say we go buy a used car.

          Will everything the salesman tells us about the car be false? Of course not. He will tell us it has an automatic transmission. It does. And he will tell us it has air conditioning. It does. He will tell us the engine is a six cylinder engine. It is.

          On the other hand, we know he will also tell us plenty of lies. It only had one owner, a little old lady in Pasadena. Nope. It’s the most reliable car on his lot. No, it isn’t. It has a clean maintenance history. Sorry.

          The point is, would we use the used car salesman as an accurate source as to anything about the car? No, we wouldn’t. We’d look to other sources, as well as our own observation.

          That’s what the Federalist was.

          1. Dilan, with history, at best, you get everything at second hand. You have no “own observation,” at all. You yourself see nothing of the events the historical record puts before you. The “accounts and descriptions,” as it were, are the exclusive property of the past.

            That puts you on your mettle to understand as deeply as possible what your sources-at-some-remove are telling you. Critiquing those sources on the basis of present-day notions, including used car analogies, just reduces your chance to learn from history during the time you invest in scoffing at it.

          2. That’s a poor analogy, since the relevant question isn’t what features the car had, but what features you understood the car to have.

  6. Legislative history should be considered, if for no other reason than that the final form is the result of negotiations to change wording so they can sneak things through without others realizing it.

  7. Fascinating study.

    In my limited, and anecdotal, experience, I have noticed the following.

    Scalia’s approach is much more debated in the academy than in practice. That said-

    1. I have not seen it in state practice, but have occasionally seen it in federal courts.

    2. To the extent that you do see it, it is to disregard oral statements about the legislation, while still using committee reports, prior versions of the legislation, staff reports and other written documents.

    3. The greatest influence that I think Scalia had is that, for the most part, judges prefer to keep a textualist reading, and will only go to the legislative history to try to resolve ambiguities, as opposed to going to the legislative history first to override the text.

    Which is why I think that, while he failed in his overall approach, he shifted the terms of the debate so that textualism is the go-to, with legislative history to fill in the gaps. So I concur with your final sentence.

    1. I think you can argue that drafting history (prior versions) is very different than legislative history. If a provision is removed, for instance, that is powerful evidence that Congress didn’t want it in there. Indeed, I believe Scalia even used drafting history on some occasions.

  8. Were I a President, I would want to appoint justices in the Scalia model, if not in the Scalia ideology. Like Brennan, Scalia spoke loudly but was also a coalition builder. That combo is what you want if you want to change legal convention.

    Thomas and Alito may be dependable, but once the’re gone, they will be gone. Scalia ain’t gone.

    In fact, I don’t think I see anyone like that on the Court at the moment.
    Ginsberg doesn’t seem like she builds coalitions either. Roberts does, but doesn’t have any change he’s loudly pressing.

    1. “Were I a President, I would want to appoint justices in the Scalia model, if not in the Scalia ideology. Like Brennan, Scalia spoke loudly but was also a coalition builder.”

      Uh …. mmmmm…… you might want to ask Justice O’Connor about that!

      Scalia was most definitely NOT a coalition builder, and if I recall correctly, he wasn’t too worried about it. While he had friendships on the Supreme Court (such as with RBG), he was notorious for alienating colleagues with his opinions.

      He was unapologetic that he was not writing to build a consensus; he was writing to influence law students, academics, and (maybe?) judges. There is a reason why most people can think of a great Scalia dissent, but you’re hard-pressed to remember many Scalia majority opinions.

      1. His dissents were spicy, but I thought I remember hearing he was good at coming to his colleagues offices and debating/cajoling them into accepting his take.

        But I do also remember your last paragraph being said about him…I may be mixing him up with someone else, but I can’t imagine who.

        1. Scalia wasn’t great at coalitions but some of his ideas- and I say this as someone who wasn’t a fan- were actually good and persuaded some of the justices over time. Apprendi is a good example of this- he advocated for years that taking sentencing away from juries was a significant violation of the rights of criminal defendants. He eventually persuaded basically everyone on the Court but Justice Breyer (who as a technocrat in an earlier life served on the sentencing commission and, like everyone who did so, hates juries) that he was right about this.

          Similarly, Scalia’s dissents in confrontation clause cases like Maryland v. Craig eventually resulted in the Crawford case that reinvigorated the doctrine.

          He really could persuade people, sometimes. And a lot of justices aren’t very good at that.

  9. “Thus the best answer to the question whether Scalia achieved modest success or instead failed is yes.”

    I know this is a blog, but this is a terribly-written sentence. If someone asks you, “Did you pass the exam, or fail it?”, and you answer, “Yes.”, we have learned NOTHING at all about your exam performance. “Did your coin flip yield a Heads or a Tails?”. Um, yes. (All we now know is that the coin did not land–and stay–on its edge.)

    [Feel free to delete this once you’ve had the chance to do some light editing.]

    1. ?Really?

      I thought it was a sentence that perfectly captured the essence of what happened.

      1. Yes, we were being wry.

        1. Ah, got it. Wry does work. Just flew over my head…thought you had missed including a word or two.

  10. Scalia was right in principle about legislative history. There’s just way too much game playing involved, as members of Congress lard it up with statements regarding stuff that isn’t in the statute.

    But, 2 observations:

    1. It doesn’t matter if he was right. He never got close to 5 votes. So sure, he probably ended the era of “look at the legislative history first, then the text”, but he never convinced his colleagues that legislative history couldn’t be used as a tiebreaker in the appropriate case.

    2. His same argument about legislative history also applies to the Federalist Papers, Eliot’s Debates, and other founding-era documents. The were all larded up with lies and propaganda and false claims about the content of the Constitution too. And yet, Scalia loved those.

    1. “His same argument about legislative history also applies to the Federalist Papers, Eliot’s Debates, and other founding-era documents.”

      This is not necessarily the case. Legislative history may be irrelevant to underlying intent for the reasons Scalia argued. Contemporaneous writings may inform things like common understanding, especially with older statutes where we might not have as many resources to evaluate. Legislation (or constitutional provisions) incorporating terms of art require different considerations than mere dictionaries, and some contemporary sources can help shed light on what they mean.

      1. NToJ, you mention, “contemporaneous writings.” Do you mean just any writings, or is there some kind of test for relevance. Without constraint by standards on how to evaluate relevant context, the notion of, “common understanding,” strikes me as a political football factory.

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