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The Reconceptualization of Legislative History in the Supreme Court

74 Pages Posted: 18 Mar 2009  

Charles Tiefer

University of Baltimore - School of Law

Date Written: 2000


In 1995, the Supreme Court began to embrace a approach to interpreting Congressional intent. From that year forward, the Breyers-Stevens model of legislative history, or "institutional legislative history," has seen significant success, emerging in the shadows of the success Justice Scalia's enjoyed while promoting his brand of textualism in the early 1990s. In developing a new way to view Congressional intent, Justices Breyers and Stevens synthesize information gathered from congressional report details, preferably attached to bill drafting choices, thereby renouncing Scalia's reliance on the purposes espoused by the Congressional majority. This new approach, the author contends, rejuvenated the court's approach to legislative history, offering a superior and more holistic approach toward uncovering Congressional intent.

This article, in seeking to illustrate why "institutional legislative history" has enjoyed significant success in the Court, traces the developments in the early 1990s that led to the Court's shift from textualism to Justices Breyers and Stevens's conceptualization. By examining seventeen recent opinions, the author uncovers the philosophical and political theories compelling the Court's decisions before asking important questions about their continued viability.

Keywords: Supreme Court, Scalia, Breyes, Stevens, textualism, legislative history, statutes, 'Busy Congress', Chevron, Austin/Hart, Searle, Conference Reports, Congressional intent, Congressional reports, statutory interpretation

JEL Classification: K39, K49

Suggested Citation

Tiefer, Charles, The Reconceptualization of Legislative History in the Supreme Court (2000). Wisconsin Law Review, p. 205, 2000. Available at SSRN:

Charles Tiefer (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21201
United States

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