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: The Patry Treatise Blog

Chapter 2: Statutory Interpretation

By William Patry

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Here are some issues I am thinking about for Chapter 2, which covers statutory interpretation. The issues are: Could a majority of the Supreme Court hold for itself and coercively for the lower courts, that use of legislative (appreciating that "use" is a vague term) is off-limits in all or some circumstances, or is such a position merely the personal preference of a particular judge? If the Court has such coercive power, what is the source of that power?
A friend who is a federal judge thinks that Scalia?s views on the use of legislative history are not an attempt to coerce others through stare decisis to go along. This raises the question of whether statements by the Court about methodology of interpretation are a "holding" entitled to some precedential weight. Professor Nicholas Rosenkranz, in his epic article "Federal Rules of Interpretation," 115 Harv. L. Rev. 2085, 2144-4145 & n. 267 (2002), says this:

"[A]crucial institutional fact about the Supreme Court is that it comprises nine competing perspectives. To the extent that any given canon persuades some but not all Justices, its value as a component of an interpretive regime is severely diminished. For example, textualism, with its aversion to legislative history, offers a potential economic boon: by ruling inadmissible countless reams of hearing transcripts, committee reports, and so forth, textualism promises cheaper and more efficient lawyering and judging. But, crucially, this benefit can only be achieved when all nine Justices are textualists. So long as at least one can be swayed by legislative history, it will be worthwhile for lawyers to research and argue from it.
Indeed, the Justices do not seem to treat methodology as part of the holding of case law. For example, many cases feature clear majorities that explicitly ratify the use of legislative history. But Justice Scalia never concedes that he is bound to that methodology by stare decisis."

"[267] For instance, Justice Scalia writes:
Of course even if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor), nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 390 (2000) (Scalia, J., concurring in the judgment). Does this suggest that he views choice of interpretive methodology not merely as an inalienable component of the judicial power but rather as an inalienable prerogative of each individual Article III judge? Or do the policies underlying stare decisis not apply to interpretive methodology?"

Presumably, Professor Rosenkranz?s question is raised by Justice Scalia?s use of "I" rather than some more general, perhaps imperative terminology. If this is the case, I am happy because I certainly believe that judges should be free not to resort to legislative history; my objection is to the view that they are somehow precluded from doing so under all or some circumstances. (The use to which legislative history is then put is a quite different question). And if he is right about Scalia not regarding the Court?s statements on the use of legislative history as being accorded any weight, then his own statements for the majority (or any other Justice?s for that matter), may be freely ignored too under the what?s sauce for the goose is sauce for the gander cannon of construction.

Why I think this is an issue is that one comes across lower court opinions stating that the Court has told them they shall not resort to legislative history, and fill in the blanks here for the exceptions. Such lower courts then cite selective statements from selective opinions, especially this remark by Justice Kennedy from Exxon Mobil Corp. v. Allapath Services, Inc., 545 U.S. 546, 568-569 (2005):

"As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms. Not all extrinsic materials are reliable sources of insight into legislative understandings, however, and legislative history in particular is vulnerable to two serious criticisms. First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal's memorable phrase, an exercise in " ?looking over a crowd and picking out your friends.? " See Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L.Rev. 195, 214 (1983). Second, judicial reliance on legislative materials like committee reports, which are not themselves subject to the requirements of Article I, may give unrepresentative committee members-or, worse yet, unelected staffers and lobbyists-both the power and the incentive to attempt strategic manipulations of legislative history to secure results they were unable to achieve through the statutory text. We need not comment here on whether these problems are sufficiently prevalent to render legislative history inherently unreliable in all circumstances, a point on which Members of this Court have disagreed."

This passage acknowledges that there is disagreement on the Court about the general reliability of legislative history (and presumably therefore its usefulness) ? I seriously doubt any member of the Court with negative views of legislative history have so much as lifted a finger to empirically study the issue rather than spout off uninformed prejudice masquerading as experience (and it should be noted that the three dissenters had a very different view of the usefulness of the particular legislative history at issue)- but I wonder if there is an indication here that if a majority of the Court could be cobbled together, a coercive ban might be possible. There are some who think such coercive power is inherent in merely being the "Supreme Court" over the "inferior courts," that the power derives from the Court?s self-created "supervisory powers," or, pragamtically, will occur because the lower courts will want to do things the "right" way, as set forth by the Court. Has anyone researched these issues?

Full post as published by The Patry Treatise Blog on February 26, 2007 (boomark / email).

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