Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?

106 Pages Posted: 16 Apr 2016

Date Written: 1995


Recent debate about the propriety of relying on legislative history in interpreting statutes has tended to focus on the landscape as a whole. Federal judges, writing both in opinions and in scholarly journals, have expressed spirited disagreement over whether to consult legislative history at all. Legal academics, in espousing divergent theories of statutory interpretation, have frequently illustrated and supported their theories by drawing on or referring to the broad corpus of legislative history.

An alternative approach is to begin by examining a particular context in an effort to arrive at more general insights or conclusions. This article focuses on a certain type of legislative history, examining both when it should be relied on and how refusals to rely on it may entail substantial costs to the legislative process. At the same time, analysis of this particular type of history offers insights about the broader issue of whether - and when - it is appropriate for courts to credit legislative history. The article addresses that broader issue as well.

This article also departs from more traditional analysis by examining legislative history from a Congress-centered viewpoint. Much of the scholarly literature considers statutory interpretation from a judge-centered perspective, regarding statutes as one among the various sources of law to be interpreted and applied to particular controversies. While such consideration is surely important, it does not reflect an adequate appreciation for the structure and operation of Congress's lawmaking enterprise. This article regards the legislative process as a distinctively complex participatory regime that requires, and rewards, an interpretive method different from that applied to judge-made law.

The category of legislative history I will examine involves a rather extended dialogue between Congress and the federal courts, particularly the Supreme Court. Federal legislation often includes language that is inconclusive on some important matter of public policy. The Supreme Court may resolve the uncertainty through an interpretation of the statutory language in the circumstance of a specific case. Congress, in turn, may emit either of two kinds of signals regarding its view of the Court's interpretation. On the one hand, Congress may, if it approves, incorporate the Court's conclusion into statutory text. Or Congress may, if it disapproves, expressly override the Court's decision and modify the statutory language in question.

On the other hand, Congress often sends signals that, while clearly set forth in the legislative history accompanying a subsequent enactment, do not find their way into the statutory text. Thus, Congress regularly reauthorizes, updates, or modifies statutory schemes and - as part of its process - endorses through legislative history judicial interpretations of inconclusive provisions in those schemes without altering the language of the actual provisions. Similarly, there are numerous instances, though doubtless fewer in number, in which Congress - while reenacting or modifying a statute - has in legislative history expressed disapproval for a court's holding or reasoning without a complete textual analogue for that disapproval.", These expressions of approval or disapproval in the legislative history, referred to herein as congressional reviews of, or commentaries on, judicial decisions, provide the focus for my analysis.

Suggested Citation

Brudney, James Jules, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? (1995). Michigan Law Review, Vol. 93, No. 1, 1995; Fordham Law Legal Studies Research Paper No. 2765025. Available at SSRN:

James Jules Brudney (Contact Author)

Fordham University School of Law ( email )

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New York, NY 10023
United States
212-636-7387 (Phone)

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