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Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect


James J. Brudney


Fordham University School of Law

August 2007

Ohio State Public Law Working Paper No. 95
Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 64

Abstract:     
This article conducts an in-depth examination of Supreme Court Justices' reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.

First, the article presents a powerful case against the conventional wisdom that legislative history is a "politicized" resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions - if true - should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When these eight liberals use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors then review individual majority opinions to demonstrate how this surprising pattern of reliance is based on neutral doctrinal considerations. Liberal Justices use legislative history to illuminate the existence and contours of complex statutory bargains that often favor conservative or pro-employer positions. The authors consider alternative explanations, premised on the institutional factor of who assigns majority opinions and also the instrumental possibility that liberals withhold use of legislative history in "minor" cases to enhance its value in more important decisions. They conclude, however, that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion.

The article's second major contribution is to identify and analyze the Scalia Effect that has arisen with respect to liberal Justices' use of legislative history since 1986. In the face of Justice Scalia's fervently expressed opposition to legislative history, liberal Justices have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals' strategic restraint is to make their use of legislative history in remaining (mostly pro-employee) majority opinions appear more ideological than was true before Scalia joined the Court. The authors also show that liberal justices have special reasons for acting strategically in this regard. When liberals rely on legislative history, Justice Scalia is significantly less likely to join their majority opinions even when he votes on their side; he also is significantly less likely to vote for the majority result when these liberals rely on legislative history than when they do not. Intriguingly, Justice Scalia's strong resistance to legislative history usage does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues a free ride: he is every bit as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

Number of Pages in PDF File: 71

JEL Classification: J50, J53, J58, K31, K40

working papers series


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Date posted: August 31, 2007  

Suggested Citation

Brudney, James J., Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect (August 2007). Ohio State Public Law Working Paper No. 95; Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 64. Available at SSRN: http://ssrn.com/abstract=1008330 or http://dx.doi.org/10.2139/ssrn.1008330

Contact Information

James Julius Brudney (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
212-636-7387 (Phone)
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