The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras

Article excerpt

Reliance on legislative history in the Court's majority opinions has fallen from nearly 50 percent during the Burger era to less than 30 percent since 1985.

The United States Supreme Court's reliance on legislative history to help explain and justify its decisions has declined sharply over the past two decades. Both federal judges and academics regularly disagree on whether courts should consult the record of legislative hearings, committee reports, and floor exchanges that accompanies a congressional enactment.1 In the midst of this spirited debate, the Rehnquist Court embarked on a substantial departure from past practice. An examination of some 650 majority opinions in the area of workplace law reveals that reliance on legislative history has fallen from nearly 50 percent during the Burger era to less than 30 percent since 1985.

The Court's receding faith in legislative history is often attributed to the influence of Justice Antonin Scalia, who has consistently criticized use of this resource as an aid to interpretation. Although Justice Scalia's role has surely been important, what about the contribution of other justices, who author some eight-ninths of the Court's decisions? Does the Court's diminished appetite for legislative history extend equally to all subject matter areas within a given field of law? Further, in a doctrinal field where federal statutes are consistently liberal or redistributive in orientation, does the Court rely on legislative history more often to support liberal results than conservative outcomes? Finally, is there an ideological "tilt" associated with legislative history reliance by liberal or conservative justices?

Focus on these questions helps explain why the Rehnquist Court curtailed the use of legislative history as part of its reasoning process. There has been a recent upsurge of interest among legal and social science scholars in analyzing judicial reasoning from an empirical perspective.2 Examining how the justices use legislative history to support their decisions offers insights for lower courts and attorneys as they consider legislative history arguments in future cases. In addition, assessing the Court's principled justifications for its holdings sheds light on the persuasiveness of judicial decision making; this in turn influences perceptions about the legitimacy of courts in general.

The dataset for this study consists of every United States Supreme Court decision involving the law of the workplace from the start of the Burger Court in 1969 through the end of the Rehnquist Court in 2005. This broad category encompasses 649 decisions-primarily statutory but also constitutional-that address union-management relations, employment discrimination, safety and health, minimum wage and overtime standards, retirement benefits, employee privacy and freedom of expression, and even the immigration or tax consequences of individuals' status and conditions while on the job. Within the workplace law field we have identified eight distinct subject matter categories: seven covering claims that relate to different statutory schemes, and the eighth covering decisions that apply provisions of the Constitution. Measured in three-year intervals, workplace law cases have formed a remarkably stable portion of the Court's docket since the mid 1970s, about one-sixth of all merits decisions.


The purpose of the research reported here is to explore the Court's reasoning techniques, specifically reliance on various interpretive resources to help the majority reach its result. Legislative history is one such resource for the Court. The Court makes use of committee reports, floor debates, hearings, or other legislative record evidence that it finds indicative of the legislative intent underlying the text that is subject to dispute. For instance, the Court may refer explicitly to a committee report discussion to clarify the meaning of inconclusive statutory language, or to reinforce that such language was intended to apply in a certain way. …