The Paradoxical Impact of Scalia's Campaign Against Legislative History

70 Pages Posted: 1 Jun 2020 Last revised: 20 Aug 2020

See all articles by Stuart Minor Benjamin

Stuart Minor Benjamin

Duke University School of Law

Kristen Renberg

Duke University School of Law

Date Written: August 19, 2020


Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative history than their Democratic counterparts, and that judges who joined the bench during or after these attacks were more likely to be influenced than their counterparts who were appointed before the attacks. Utilizing a dataset containing all published federal appellate court majority opinions between 1965 and 2011 (more than 240,000 opinions), we find that, for both hypotheses, the judges whom we would expect to be more influenced by the attacks on legislative history were in fact less likely than their counterparts to cite statements from floor debates or committee hearings, traditionally regarded as among the least reliable forms of legislative history. But they were more likely than their counterparts to cite committee reports, traditionally regarded as the most reliable form of legislative history. The attacks on legislative history thus seem to have had the effect of pushing judges who might be expected to be influenced to (re)examine their treatment of legislative history but not (as Scalia had advocated) to avoid citing it. Instead, they adopted what had been the consensus approach for most of the twentieth century. Scalia influenced, but he did not persuade.

Keywords: Statutory interpretation, statutory construction, legislation, federal courts, courts of appeals, circuit courts, supreme court, legislative history, textualism, purposivism, intentionalism, committee reports, conference reports, floor statements, committee hearings, citation, judicial decision maki

JEL Classification: K10, K00

Suggested Citation

Benjamin, Stuart Minor and Renberg, Kristen, The Paradoxical Impact of Scalia's Campaign Against Legislative History (August 19, 2020). 105 Cornell Law Review 1023 (2020), Duke Law School Public Law & Legal Theory Series No. 2020-27, Available at SSRN:

Stuart Minor Benjamin (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7275 (Phone)
919-613-7231 (Fax)

Kristen Renberg

Duke University School of Law ( email )

Durham, NC
United States

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