The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The other morning, while listening to the oral argument in Patchak v. Zinke, I was struck with the sense of deja vu.
"I look at statutory history," announced Justice Sonia Sotomayor in the midst of a lengthy question to one of the attorneys. Hadn't I heard this before?
I hopped on Westlaw and, sure enough, Sotomayor said much the same thing a week earlier during the oral argument in Artis v. District of Columbia. From the transcript:
JUSTICE SOTOMAYOR: Well, my problem is that I look at statutory history; not legislative history, statutory history. And the statutory history is that the ALI report set forth a very clear grace period. (emphasis added)
Here again, Sotomayor announced her interest in "statutory history," while also taking pains to emphasize that she was not embracing reliance upon "legislative history."
For what it's worth, the phrases "legislative history" and "statutory history" both appear with some frequency in oral argument transcripts, but I could not find any other instance in which a justice made an effort to distinguish the two. The same is true for Supreme Court opinions, as far as I can tell.
In some lower court opinions, however, there is a distinction drawn between statutory history and legislative history. Specifically, the former is understood as the drafting or revision history of the relevant statutory text, whereas the latter includes explanatory statements by legislators, floor debates and the like. By some accounts, statutory history is a subset of legislative history.
Some commentators see the two as equally probative of statutory meaning, whereas others would argue that the former is more objective and less prone to manipulation than the latter. Whereas relying upon legislative history can be characterized as looking out on a crowd and picking out your friends, statutory history is not subject to the same critique. Perhaps this is why Sotomayor felt the need to draw the distinction. I will be curious whether this distinction is drawn in a future Sotomayor opinion.