Early Reflections on the Roberts Court and Legislative History

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6 Responses

  1. “Scalia (roping in/often joined by Thomas and thus far the Chief Justice)”

    …anyone who uses the term “roping in” in relation to Justice Thomas (and the Chief Justice) is obviously watching this Court with a pre-determined viewpoint shaped by rather tired and discredited stereoytpes.

    (…and can you imagine the liberal/progressive fury unleashed – esp. in this era of noose-sensitivity – if someone wrote that Justice Brennan had previously “roped in” Justice Marshall on some of their predictable tandem votes?)

  2. MD lawyer says:

    I read “roping in/often joined by” to mean that Justice Scalia is the most vocal of the three in his categorical rejection of the use of legislative history in construing statutes, not to mean that the others are lesser intellects or somehow less independent in their decisionmaking processes.

    I doubt that there would be any “fury unleashed” if someone wrote that Justice Brennan had “roped in” Justice Marshall in a tandem vote. Justice Brennan was known to act strategically in trying to get the votes of other Justices, and “roped in” wouldn’t be an inappropriate description of what he did in at least some cases.

    Finally, the “noose-sensitivity” thing is more than a little farfetched, particularly when you’re talking about persuasion among Supreme Court Justices who have largely similar political views.

    Prof. Krishnakumar, thanks for this post. I’ve often thought that the Supreme Court sends out mixed signals on the rightful place of legislative history in statutory interpretation, as Justices Scalia, Stevens and Breyer have each been able to write majority opinions in statutory interpretation cases, even though the former’s views are diametrically opposed to the latter two. This post seems to provide a compelling answer.

  3. Anita S. Krishnakumar says:

    Whoa! Hold the combative fire! I certainly don’t mean to suggest that Justice Scalia was tricking anybody into joining his opinions — that’s silly. All I meant was that I don’t think (and this is my speculation) that Justices Thomas and Roberts share the utter frustration that Justice Scalia expresses with the majority’s use of legislative history (that’s all that the post, and what comes after the parenthetical you’re objecting to, is talking about) in his Hamdan and Zuni dissents, even though they joined those opinions on the merits.

  4. Bruce Boyden says:

    MC, the evidence Anita cites above for the “roping in” claim is that Roberts and Thomas signed on to 2 Scalia opinions rejecting legislative history, but seem unwilling to join him in other cases in objecting to legislative history on principle. Meanwhile, when Thomas and Roberts write independently, they don’t seem to have the same level of antipathy toward legislative history. I.e., Scalia’s successfully getting votes on this issue, but it seems to be taking a little persuasion.

    How is that even remotely a claim based on negative stereotypes? I think you may have approached this blog post with a pre-determined viewpoint shaped by discussions you have read elsewhere.

  5. Trevor Morrison says:

    It’s true “the Roberts Court” is in its relative infancy, but seven of the nine members of that Court are nowhere near the infancy of their time on the Court. What’s the theory under which it makes sense, when figuring out those seven Justices’ approaches to legislative history, to look only (or even principally) at what they have done since Robert and Alito have arrived? Is the idea that they might have taken the arrival of a new Chief Justice as an opportunity to turn over a new interpretive leaf? That seems a little implausible.

    So, e.g., I think an attempt to figure out where Souter stands on legislative history would benefit greatly from looking at a number of pre-Roberts Court cases, including cases like Crosby v. National Foreign Trade Council (2000), where his majority opinion made considerable use of legislative history and Scalia (joined by Thomas) concurred only in the judgment to express disagrement with that use(stressing in particular that the statute was so plain that resort to legislative history was unnecessary).

  6. Anita S. Krishnakumar says:

    I agree that an analysis of the seven long-serving Justices’ doctrinal leanings would benefit from looking at additional, pre-Roberts-Court cases (although I do think that shifting Court dynamics have some effect on the Justices’ methodologies) — but that’s a project beyond the scope and length of this blog post. In my next law review article, perhaps!

    Also, I’m probably not as familiar with the case as you are, but it’s my sense that Crosby is not so much a statutory interpretation case (asking “what do certain words or phrases in this statute mean?”), in which plain meaning of the text arguably could end the inquiry, as a Supremacy Clause preemption case (which asks the different question “does the state law undermine the intended purpose or effect of the federal statute (is there field or conflict preemption)?” and more openly invites judicial inquiry into the legislative history of the federal statute in order to illuminate its purpose and intended reach).