The Roberts Court undoubtedly still is in its infancy when it comes to matters of statutory interpretation. Despite this shortage of extrapolation-material, I think it possible to hazard a few speculations about emerging trends in the fledgling Court’s statutory interpretation methodology. At least as concerns legislative history —an ever-fertile ground for debate amongst judges and academics— I note three emerging camps among the Justices:
1.Stevens, Breyer, Ginsburg: Legislative History is relevant to help clarify statutory meaning in the first instance, because it provides context and can illuminate Congress’ intent and purpose in enacting the words at issue.
Evidence: In Hamdan v. Rumsfeld , a case that involved §1005(e)(1) of the Detainee Treatment Act (DTA), these three Justices were willing to rely in part on the fact that when Congress passed the DTA, it specifically considered and rejected a proposal to bar Supreme Court review of habeas applications from aliens detained at Guantanamo Bay that were pending at the time the statute was enacted. (The DTA clearly bars Supreme Court review of habeas applications filed after the date the statute takes effect, and the key question was whether that bar applied to an application filed by Hamdan before the statute was enacted).
Similarly, in Zuni Public School District No. 89 v. Dep’t of Education, these three Justices looked to and relied on the facts that (1) the Secretary of Education drafted the statutory language at issue and promulgated the challenged regulations (and calculation method for per-pupil expenditures) immediately thereafter; and (2) the challenged regulations had been in effect for 30 years prior to this challenge, during which time Congress never objected to the Secretary’s regulations or calculation method. (In other words, the Justices relied on the identity of the drafter and on post-enactment congressional silence).