Judicial Citation to Legislative History: Contextual Theory and Empirical Analysis

Abstract

Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make such choices in a broader context than Judge Levanthal's statement suggests. We posit that an opinion writing judge would cite legislative statements supporting an outcome preferred by the opinion-writing judge, when such statements come from legislators who share the same political-ideological perspective as the opinion-writing judge's colleagues or superiors. This should be so regardless of whether the cited legislator shares the broader perspectives of the opinion-writing judge himself. Put in Leventhal's terms, instead of looking for their own ideological friends, judges look over the heads of the guests for the legislative friends of the judge's colleagues on the bench (or superiors on higher benches). We test this approach with court opinion data gathered from LEXIS and find evidence of hierarchy (high court oversight) and panel (co-members on a court) effects in citation to legislative history, effects that appear related to the political-ideological identification of judges who review or are co-members on a panel of the authoring judge. Specifically, we find that the higher the proportion of Republicans in the reviewing court or sitting on the same three-judge panel, the higher the proportion of legislative history cites that will be to Republican legislators, independent of the political orientation of the authoring judge.

Keywords: Legislative History, Contextual Theory, Law and Positive Political Theory, Empirical, Judicial Behavior