The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras

Abstract

This article examines and analyzes possible reasons behind the Supreme Court's declining reliance on legislative history over the past two decades. The authors report, based on a dataset of some 650 majority opinions in the area of workplace law from 1969 through 2005, that reliance on legislative history has fallen from nearly 50% during the Burger era to less than 30% in the Rehnquist years. Examining majority opinions written by individual justices over this period, the authors demonstrate that Justice Scalia has played an important role - both through overt resistance to legislative history expressed in his own opinions and through his apparent influence on the writings of several colleagues. Subject matter considerations have contributed as well: sharp declines in reliance have occurred between the Burger and Rehnquist eras for statutes that aged notably during the 36 years covered by this study. As a regulatory scheme (such as Title VII or the NLRA) advances to middle age and beyond, the Court may well conclude that other interpretive resources (such as Supreme Court precedent and agency deference) are more trustworthy or malleable in clarifying and developing the meaning of inconclusive text.

The article also reports findings that indicate the Court's reliance on legislative history is intriguingly non-ideological in direction. With respect to the Court as a whole and distinctly ideological subgroups of justices, legislative history reliance for liberal/redistributive workplace law statutes is associated with pro-employer results more often than one might expect. The authors offer several principled explanations for these findings, and suggest the Court's use of legislative history may be deliberative and coherent in ways that legislative history sceptics have not imagined.

Keywords: legislation, statutory interpretation

JEL Classification: K10, K40, K41