When courts interpret statutes, should they focus only on the text? That’s not a crazy idea; when we try to understand what someone else is telling us, we often focus on the words that person is using. The trouble with doing this in ordinary life is that often people choose their words imperfectly, so we routinely fill in many possible blanks and resolve many possible inconsistencies by looking at the context – who the speaker is, what the situation is, what body language and facial expressions went along with the words, and so on.
How do our habits in ordinary conversation carry over to reading statutes? One possible answer is that with statutes we have nothing except the words themselves. To speak just of federal statutes, only their words are voted on by and signed into law by the President. And since there are a lot of different people responsible for the process of formal enactment (all the members of Congress, plus the President), we can’t ask the various questions we would in interpreting conversation, because there are too many “speakers” to try to attend to. Following this logic, we would disregard what’s called “legislative history” – the record of who said what about the legislation under consideration. We would attend only to the text, or in other words we would be “textualists.” (Attending to the text may be quite a complex business, though; “textualists” aren’t by any means always “literalists.”)
But attending only to the text ought to strike us as very odd. If legislators speak to each other about proposed laws, and in the course of those debates they say “This law would mean X,” it’s strange that later on a court trying to determine whether the law does mean X would give little or no weight to the legislators’ statements. It is true that no one voted on those statements – only the statute itself gets voted on – but if those statements clarify what the legislators thought they were voting on, it seems self-defeating for judges seeking insight to disregard the legislators’ understandings. Most members of the Supreme Court in fact wouldn’t totally disregard them, but Scalia and Thomas generally would – and many judges today are hesitant to give much emphasis to what may be found in legislative history.
That wouldn’t be so odd if legislative history were misleading and unreliable – and so it has often been said to be. But is it? One way to find out would be to ask people in Congress whether they in fact rely on it. But until recently, it appears that no one had ever asked. Now there’s an exception (actually there are two, but the earlier study was evidently a much less extensive inquiry than the one I’m discussing). In two long articles, Abbe Gluck of Yale and Lisa Schultz Bressman of Vanderbilt describe their survey of “137 congressional staffers drawn from both parties, both chambers of Congress, and spanning multiple committees.” (Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stanford L. Rev. 901, 902 (2013); Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside—An Empirical Study of Congressional drafting, Delegation, and the Canons: Part II, 66 Stanford L. Rev. 725 (2014).)
Among their findings: “Perhaps most importantly, legislative history was emphatically viewed by almost all of our respondents—Republicans and Democrats, majority and minority—as the most important drafting and interpretive tool apart from text.” (Gluck & Bressman, Part I, at 965). Overall their respondents appeared to see legislative history as considerably more useful than many of the technical rules of interpretation (the “canons” of interpretation) that courts often use. (Id. at 966.)
As Bressman & Gluck carefully note, it’s possible to argue that legislative history should be disregarded even if it is reliable. But its supposed lack of reliability has certainly been an important reason why many judges have turned away from it. So this study not only suggests that perhaps judges should look more receptively to legislative history in the future, but also raises another question: why did judges accept the attack on legislative history’s reliability as readily as they apparently did, without anyone having actually checked whether that attack was factually well-founded?
One answer, which I think fits broadly with what Gluck and Bressman believe (they write about our potential “evolution” towards a true “Age of Statutes,” Bressman & Gluck, Part II, at 725), is that we are all still learning how to interpret statutes. We are novices, and we are prone to become infatuated with ideas that on more sober examination will prove problematic. But our infatuations aren’t randomly distributed. Nature abhors a vacuum, and we are prone to fill the space of our ignorance with our predispositions and our preferences – and the battles over interpretation have surely had strong political overtones. We can’t hope that politics, or profound disagreements over values, will someday cease to affect adjudication. But we can hope that if stubborn facts point to the value of a method of interpretation, then we will find a way to honor those facts, and look elsewhere for the tools of the ongoing arguments we have about values. We can, at least, hope!