On February 11th, Professor Anita S. Krishnakumar presented a draft of her paper, Statutory History, at a faculty workshop at the University of Southern California Law School (USC).  The paper explores the U.S. Supreme Court’s practice of examining prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about a statute’s meaning. 

Here is the abstract:

The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes.  Indeed, Justice Scalia himself was famous for dissenting from paragraphs, sentences, or even footnotes in opinions that so much as casually mentioned a statute’s legislative history, even as corroboration for an interpretation reached through textual analysis.  A less well-known corollary of modern textualism’s aversion to legislative history, however, is that textualists are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about the statute’s meaning.  In fact, textualist Justices regularly use this kind of “statutory history” to draw inferences about a statute’s substantive meaning, even as they criticize the use of other more traditional forms of legislative history.

It is at once surprising and instructive that textualists have embraced this kind of “statutory history” while rejecting traditional legislative history.  On the rare occasions when they have acknowledged this dichotomy, textualists have sought to distinguish statutory history from traditional legislative history on the ground that the former involves comparisons of enacted statutory language, rather than mere commentary by legislators.  Scholars have, largely uncritically, tended to accept these distinctions.  But no one to date has studied the judicial use of statutory history in any significant detail, nor has anyone evaluated whether the theoretical justifications textualists offer for their use of statutory history, as distinct from traditional legislative history, hold up in practice.  

This Article provides the first empirical and doctrinal examination of how the U.S. Supreme Court employs statutory history to determine a statute’s substantive meaning.  Based on a study of 574 statutory cases decided during the Roberts Court’s first thirteen-and-a-half terms, the Article catalogues five different forms of statutory history inferences employed by the modern Court.  It finds that (1) the Justices on the Roberts Court exercise significant discretion when drawing inferences from statutory history; and (2) while some of the statutory history inferences the Court draws are consistent with the theoretical justifications textualists have offered, many involve unenacted legislative materials or venture beyond traditional text-based analysis—and are difficult to distinguish from traditional legislative history or other contextual purposive evidence that textualists reject.  In the end, the Article suggests that textualists should either abandon their reliance on statutory history altogether or, preferably, broaden their interpretive toolkit to include other forms of background legislative context evidence, at least as a check on the inferences they draw from statutory history.