Legislation
April 14, 1999
READINGS:
Monday: CB 633-56, CB Supp. 115-127
Wednesday: CB 675-716, CB Supp. 153-59
“Battle of the Judges”
Two questions:
 If judges could all agree as to what the words we use mean, would we favor restricting judges
to those accepted meanings? Should values other than originalism affect what judges do?
 Does restraint, defined as restricting judges to accepted meanings, exist? If not, why debate
its desirability?
Constitutional issues – usually deal with remote (in time) issues
Statutory issues – many are recent, with accompanying legislative materials
J. Scalia’s defense of new textualism is wrapped up in his concept of judging.
Chisom – Scalia notes problem of courts trying to psychoanalyze Congress – seems to be a
reference to legislative intent and an attack on the concept that a judge’s function is to approach a
statute and interpret it with reference to its intent or overriding purpose. Congress didn’t
legislate an intent or enact a purpose. What they passed was statutory language. The text is the
only thing authoritatively enacted by lawmakers  elevation of text. Maybe we can look at wellestablished canons of construction too.
To go along with Scalia, one must embrace a concept of language and its ability to communicate
in unambiguous incontestable ways.
If language is the only thing that matters, because of its particular democratic legitimacy (i.e.,
passed and signed) then…
 How do we define it? Dictionaries are one way (with which we noted problems last time).
 What do we mean by ordinary or reasonable meaning – By whose lights? Determined how?
Does this deliver us from the evils of intent or purpose? (Same questions: Whose? Which
ones? How do we decide? How does an appropriate search look like?) The inquiry into
language isn’t much different. Democratic, regional differences in assigning meaning;
context affects meaning.
 How strong a claim can we really make about the determinacy of language? What
happens when reasonable interpreters differ in good faith as to the meaning of the
language?
Legislation
April 14, 1999
New textualism has two features:
1. Substitution of statutory text for intent or purpose as anchoring concept
2. Attack on legislative history
Scalia wants to categorically reject the legitimacy of legislative history – doesn’t use it to
buttress or inform his textual account.
Old textualism = softer plain meaning rule – language is important because language is the best
evidence of intent, so when Congress speaks clearly, so be it.
ex: TVA v. Hill (snail darter case)
New textualism = sharper plain meaning rule – repudiation of intent in favor or ordinary textual
meaning and disdain for legislative history.
Checklist of legislative history materials (p. 733, fn. 1, prepared by Hetzel, Libonati, and Williams)
 floor debate
 planned colloquy
Rep X: Do you mean to say blah-blah-blah.
Rep Y: Yes, that’s exactly what this bill does.
 prepared statements on submission of bill, in committee hearings and at time of floor debates
 revised and amended statements
 statements in committees but the relevant executive branch administrators
 committee reports
 transcripts of discussions at committee hearings
 statements and submissions by interested persons, both local/state government and private
parties
 committee debates on “mark-up” of bills
 conference committee reports
 analysis of bills by legislative counsel
 analysis of bills by relevant executive departments
 amendments accepted or rejected
 actions on/discussions about separate bills on the same topic, offered by each house, or in
contrast to a similar composite bill
 executive branch messages and proposals whether from the president, cabinet secretaries or
independent agencies
 prior relevant administrative action or judicial decisions, with or without congl
acknowledgement
 other subsequent or prior legislation, especially conflicting acts
 recorded votes
 status of the person speaking, i.e., a sponsor, committee chair, floor leader, etc.
 actions taken and reports, hearings and debates on prior related legislation
Legislation
April 14, 1999
Blanchard v. Bergeron (US, 1989, p. 745)
Court may allow a “reasonable attorney’s fee.”
In absence of contingency fee agreement, court would apply reasonable hours x reasonable
hourly fee. Here there was a contingency fee agreement. How does that affect the statutory right
to attorney’s fees?
Interpretive question: what’s a “reasonable attorney’s fee”? what’s the relevance of a
contingency fee to this decision?
Senate committee report refers to several court decisions (some Supreme Court, some lower
courts) and discusses factors used by courts in determining fees. Majority wants to use
legislative history to decide what a reasonable fee is.
Dissent (?): Legislative history shouldn’t displace statutory right to attorney fee. Legislative
history should just be one factor.
Scalia’s objection to the use of legislative history:
Congresspeople themselves don’t read committee reports anyway (often choose a reference
group or other representatives and make their decisions in accord with them), why should the
Supreme Court. Some young staffer must be feeling good about his work now that the Supreme
Court has cited it, but that’s insufficient to give it value here.
Do courts elevate committee reports to be a surrogate – and suspicious – form of law?
Legislative history is not used in place of text. Rather, it’s usually one among many
interpretative aids.
If we carry Scalia’s argument far enough, anything that will play a significant role in statutory
text interpretation needs to be passed by both houses and be signed by the president we’ll be in
trouble because most of the stuff that courts use doesn’t meet those criteria – e.g., canons of
construction, prior precedent, administrative source.
Scalia accepts canons of construction – but that’s constructed by judges, without any bicameralism and presentment. Maybe there’s something distinctively problematic in not allowing
Congress’s legislative records to inform interpretation of enactment even though they weren’t
passed.
What if a piece of legislative history is drafted by a law firm which through a back-room deal is
put into legislative history? Is that different from the associate drafting the language itself?
Even if legislative history were passed along with the text, it would not have the same weight as
the text of the act itself. (Perry)
There are parts of statutes that have findings of fact and identification of governing policies.
These are infrequently used by the courts even when they’re plausible and cited by parties. This
calls into question how much this is about what gets passed by the majority and what doesn’t.
[KK: Is this because we don’t trust legislators to say what’s really on their minds (due to
prejudice, reelection campaigning, etc.) before they vote but we sure do hold them to what they
enact?]
Legislation
April 14, 1999
Well, do we want Congress and committees to keep writing reports? Is it just a playground for
strategy and gamesmanship and lobbyist deals that Scalia posits or are they defensible as
deliberative documents?
To what extent are committee reports intended for judicial consumers as Scalia suggests?
Legislative staffers understand that most judges would consult the reports and it could affect
interpretation. BUT political scientists will tell you that the most important function of a
committee report is an attempt by Congresspeople to persuade one another. If they read
anything, this is the likely suspect. Sometimes the report doesn’t come out in time to be read
before the bill is passed. Most of the time is does, though, and it’s circulated and can be
persuasive. Scalia sees it solely as an intent to influence judges later – looking in a rear-view
mirror, as opposed to assisting decision-making in real-time.
Interest group influence
Committee reports get singled out for special treatment – a place where lobbyists can run wild
and invent legislative history.
Question before signing on to this idea: Do legislators (not lobbyists and staffers) sign off on
pieces of legislative history?
Is there a late-night cabal between lobbyists and staffers resulting in suspicious language inserted
into legislative history text?
Do Members of Congress know about this?
If we want to attack interest group influence, then we’re not just concerned with writing of text,
but perhaps beyond Congress entirely and into the courts. Granted, there are no lobbyists in the
justices’ chambers. But we can think of interest group influences more generally – judicial
process may be subject to interest group influence or bias. Ex: Contributions to judges’ election
campaigns.
Legislative history is not the sole example of interest group influence.
Standard critique of using legislative history
 Enabler of judicial activism – you could always find conflicting plausible records (like
Gemara)
BUT judges can choose between conflicting precedents, conflicting results from different canons
of construction, etc.
Appendix B of Schacter’s article (Supp. Mat. p. 88)
Judicially-created policy norms – the Supreme Court used policy arguments that weren’t rooted
in the statute in just under ¾ of the Supreme Court’s opinions during the term examined.
Ex: won’t undermine federalism, wouldn’t open floodgates to liability, everyone has an
interest in the environment, interpretation is judicially manageable
Sometimes linked (weakly) to concept of intent.
Ex: Congress could not have intended to undermine federalism.
Legislation
April 14, 1999
Calls into question whole idea of judicial activism. Alternatively, can see judicial activism as
inevitable and necessary because of:
 the limits of language
 institutional limits of Congress to foresee and anticipate all issues that will arise
 Congress doesn’t update its statutes
To drain discretion out of interpretation is a losing enterprise. It’s a hard case to make that there
is only one possible interpretation. Often judges are all over the map disagreeing, not to mention
litigants and others. Accept the inevitability and perhaps the benefits. Restraint is unattainable
in the pure sense.
 New question: What will inform judicial discretion? What values will guide judges? Where
will they come from?
Scalia’s new textualism aims to modify Congress’s behavior so that legislators enact easily
interpretable laws, use clear language, avoid deliberate ambiguity, etc.
Is it the proper role of judges to try to get Congress to serve their vision of lawmaking?
Feasibility – could Congresspeople do it even if they wanted to? Is that a realistic expectation to
have of statutes? Heck, do we really want to hold Congress to their specific wording when it
comes to new cases that ought to fit under the old law but weren’t specifically contemplated
by Congress?
Effectiveness – won’t it bog Congress down in details? That’s why they delegate to agencies.
Think about…
 nature of judges
 instinctual fear of judgment and judges interpreting the law – is there an alternative world in
which everything is transparent and it really is the recognition of another’s will