For decades, textualism has largely overshadowed the use of legislative history in judicial opinions. Justice Elena Kagan famously declared, “we’re all textualists now,” reflecting the decline in judicial recourse to Senate and House reports, or floor debates, to interpret statutory law. Yet, recent opinions suggest a possible shift.
A notable example is Justice Ketanji Brown Jackson’s concurrence in Learning Resources v. Trump, where she emphasized legislative history to discern Congress’s intentions. This marks a contrast to the textualist approach that rose alongside Chevron v. N.R.D.C. in 1984, when judicial deference to agency interpretation often supplanted legislative history analysis.
Justice Jackson’s approach may herald renewed scrutiny, especially after the end of Chevron deference. Scholars Robert Katzmann, Abbe Gluck, and Lisa Bressman’s work suggests legislative history can elucidate statutory meaning. Yet, the debate remains whether legislative history introduces judicial creativity more than it fosters restraint.
Chief Justice Roberts and Justice Brett Kavanaugh’s differing opinions in Learning Resources reflect ongoing contestations over the use and value of legislative history. As this clash unfolds, it revitalizes past debates by judges like Antonin Scalia, Frank Easterbrook, and Laurence Silberman who originally deliberated textualism’s ascendancy.
Jackson’s prospective role as a “post-textualist” justice might ignite fresh judicial assessments. Her integration of legislative history as a tool for judicial restraint revives speculation on the judiciary’s interpretative obligations, underscoring that legislative history, though historically contentious, may yet hold significant judicial relevance.
For further insights into the court’s evolving dynamics and approaches, see Adam White’s Major Questions series.