The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond

Article excerpt

Recent scholarship on the Supreme Court's statutory interpretation practices has focused on originalist vs. nonoriginalist approaches to legislative language, with special attention to the rise of "textualism" as a leading form of originalist interpretation. One important aspect of the perceived textualist ascendance is a decline in the Court's use of legislative history, an interpretive resource grounded in the more traditional "intentionalist" approach to statute. In her empirical study of the interpretive resources applied by the Court in its October 1996 Term decisions addressing statutory questions, Professor Jane Schacter detects judicial trends that run counter to the academic literature. Professor Schacter's study demonstrates that, contrary to recent empirical analyses finding minimal usage of legislative history by the Justices, the Court invoked legislative history in nearly 50% of the statutory interpretation cases decided in 1996. Based on an analysis of other sources used by the Court, Professor Schacter argues that the Court's recent statutory jurisprudence confounds the conventional interpretive divides that structure much of the contemporary scholarship, reflecting instead what she calls "common law originalism." This approach is evidenced by the Court's extensive use of not only statutory language, but precedent, judicially-selected policy norms, other statutes (including state statutes), canons of construction, and secondary sources, among other interpretive resources. Professor Schacter argues that recognizing the common law originalism reflected in the Court's decisions exposes weaknesses in both recent textualist critiques of legislative history and in the conventional understanding of controversies about statutory interpretation.


It is common, even mundane, to observe that the Supreme Court's approach to statutory interpretation has become increasingly "textualist" in character--that is, more oriented to statutory language and the assertedly "objective" meaning of statutory text than to the collective subjective intent behind the legislation.(1) A principal piece of evidence marshaled in support of this characterization is a decline in the Court's use of legislative history in construing federal laws.(2) Because committee reports, floor statements, and other materials generated during the legislative process traditionally appear in statutory interpretation opinions as evidence of the controlling legislative intent, the Court's declining use of these materials in construing ambiguous statutory provisions has generally been taken to signal a move away from "intentionalism" and toward the "new textualism" associated most prominently with Justice Antonin Scalia. Justice Scalia, legislative history's most conspicuous critic,(3) vigorously challenges the legitimacy of legislative history as an "authoritative indication" of statutory meaning.(4) Because Scalia and others claim that the judicial search for legislative intent in general, and the use of legislative history as evidence of that intent in particular, is inconsistent with the constitutionally prescribed roles of both the courts and Congress,(5) the legislative history question has spilled over the confines of statutory interpretation into a larger debate about institutional characteristics and roles.(6)

The embattled character of legislative history in the Supreme Court has been widely viewed as a proxy for the rise of the "new textualism," and has therefore commanded extended scholarly attention.(7) Most of this commentary has been normative in nature, weighing the strengths and weaknesses of the major critiques of legislative history.(8) A smaller body of work has ventured into empirical terrain and has charted the declining use of legislative history in the Supreme Court by examining the Court's statutory cases and noting the trend away from citing committee reports, floor debates, and other sources reflecting the statutory background. …