Justice Ketanji Brown Jackson may be starting a statutory-interpretation revolution.
Jackson’s third full term was a doozy of separate opinions. Notably, a series of those opinions were written specifically to protest the majority’s refusal to consult legislative history in statutory cases – the first shots in a methodological battle along lines not seen in more than a decade. Legislative history includes materials produced by Congress during the legislative process, like committee and conference reports. Jackson spent a large part of this term urging her colleagues to care about what Congress was actually trying to do in a statute rather than just answer the question themselves. In this sense, the legislative history battle can be seen as another arm of attack against the court’s effort to diminish deference to other branches and consolidate more power unto itself.
The Goliath that Jackson is using her slingshot against is textualism, the dominant interpretive methodology at the court that for some time now has been thought the undeniable victor of decades worth of statutory interpretation wars. Textualism is marked by a focus on statutory language and presumptions about text – such as the (dubious) presumptions that Congress legislates with consistent terminology across the U.S. Code and does not use words redundantly – and a general reluctance to consult legislative history and other evidence of congressional intent. When text cannot answer a question, textualists prefer policy presumptions, like the major questions rule (which furthers a preference for nondelegation by assuming Congress does not delegate big questions to agencies) or the federalism presumption (which assumes Congress doesn’t legislate in areas of traditional state authority).
The court had seemed to reach a stasis point over the past decade, with textualism, advocated most prominently by Justice Antonin Scalia, the decisive victor. Justice Elena Kagan’s famous 2015 pronouncement that “we are all textualists now” spoke for itself. Justice Neil Gorsuch, at his 2017 confirmation hearing, called the adoption of textualist methods by justices like Kagan and Sonia Sotomayor the ultimate proof of Scalia’s success. But not so long ago, the statutory interpretation wars did rage. And this term has given some indications – both through Jackson’s insistent stirring of the pot and through some other cracks in the unified textualist armor that I have discussed before on this site – that they may indeed rage again.
***
Scalia’s textualist methodology began the 1990s as an outlier on the court – proof in and of itself how one persistent voice can indeed change the landscape. Over the ensuing two decades, Justices John Paul Stevens, David Souter, and Stephen Breyer were forceful advocates against it and, instead, for legislative history and consideration of congressional intent in the face of Scalia’s increasing influence over interpretive methodology. Dueling opinions about methodology were common in Supreme Court cases. But by the Obama era, not only had Scalia mostly brought his conservative colleagues on board, but also a sea of judicial retirements and the coming of age of textualism-loyal academics and lower court judges had set the stage for textualism’s takeover at the court.
This term marks the first time in a long while that the takeover hasn’t seemed inevitable. But more on that in a moment.
First, Sotomayor. Like Jackson, Sotomayor’s arrival on the court injected new energy into the statutory interpretation debates. She issued a series of separate opinions in her first decade defending the importance of considering what Congress intended and how Congress works. Her very first authored dissent as a justice was in a whistleblower case, Graham County Soil and Water Conservation District v. United States ex rel. Wilson, in 2010, joined by Breyer, where she argued that the “the statutory context and legislative history are … less ‘opaque,’ … than the majority today acknowledges.” Stevens had written the majority in that case, and so there was no major debate there about the general relevance of legislative history. The next term, however, Sotomayor’s dissent in Bruesewitz v. Wyeth, a case about the preemptive effect of the National Childhood Vaccine Injury Act, provoked a spicy debate with Scalia over the utility of legislative history. That debate led Breyer to concur to say that even though he agreed with the majority’s interpretation of the act’s text, like the dissent, he “would look to other sources, including legislative history [and] statutory purpose.” Sotomayor also wrote at least three majority opinions that term invoking legislative history – each which prompted Scalia to write again to express his objections, call legislative history a“legal fiction,” and to argue “[i]t is almost invariably the case that our opinions benefit not at all from the make-weight use of legislative history.”
These debates became less frequent as the years wore on, although a notable exception was Digital Reality Trust v. Somers, a unanimous 2017 opinion by Justice Ruth Bader Ginsburg that sparked a three-justice concurrence rejecting her use of legislative history and another concurrence by Sotomayor, joined by Breyer, to note her “disagreement with the suggestion in [her] colleague’s concurrence that a Senate Report is not an appropriate source for this Court to consider when interpreting a statute.” The ensuing replacements of Justices Anthony Kennedy and Ginsburg with Justices Brett Kavanaugh and Amy Coney Barrett left even fewer defenders of legislative history on the court.
Enter Jackson. While Jackson’s advocacy for legislative history this term was impossible to miss, she actually started this effort from the moment she joined the court. Her very first question, at her very first oral argument as a justice, was about what “Congress would have intended” in a wetlands case. Last term, she issued a notable dissent in Stanley v. City of Sanford arguing:
Too often, this Court closes its eyes to context, enactment history, and the legislature’s goals when assessing statutory meaning. I cannot abide that narrow-minded approach. If a statute’s text does not provide a clear answer to a question, it is not our role to keep twisting and turning those words until self-confirmatory observations solidify our “first blush” assumptions.
This term, in Learning Resources, Inc. v. Trump, the tariffs case, Jackson went out of her way to add her own separate concurrence to a case that already had multiple separate opinions to object to her “colleagues speculat[ing] needlessly” about the statute’s meaning when, as she put it, “the Court can, and should, consult a statute's legislative history to determine what Congress actually intended the statute to do.” She concurred again in Chevron v. Plaquemines Parrish, citing one of the strongest advocates of legislative history, the late U.S. Court of Appeals for the 2nd Circuit Chief Judge Robert Katzmann, to argue that “the Court's ‘fundamental task’ in interpreting federal statutes is to give effect to Congress’s intent” and that “the Court faithfully discharges this duty when it considers all reliable evidence of Congress's intent—including statutory and legislative history.” Finally came her dissent in FS Credit Opportunities v. Saba Capital, stating that she “agree[d] with the Court that ‘Congress, not the Judiciary, decides who may enforce the law,’” and “for that very reason … courts should consult all reliable indicia of Congress’s intent.” She further chided the court for not “wrestl[ing] with legislative Committee Reports that unequivocally expressed Congress’s ‘wish’” concerning the statute at issue.
These interventions made sufficient waves that Kagan felt the need to comment. In FS, she wrote that her own “views about the proper use of legislative history in statutory interpretation fall someplace in between the majority’s and the principal dissent’s. The one-sentence version is: Reliance on legislative history may be appropriate when statutory text in context remains, after careful review, stubbornly ambiguous.” Sounds like some battle lines are being drawn.
Jackson’s statutory-interpretation interventions this term seem particularly timely, because they come in the context of other cracks in textualism’s armor. As I detailed in a previous column, this term saw significant intra-textualist arguments among the justices over how textualism should be applied. Justices argued over whether ambiguity was necessary before certain interpretive presumptions, like the major questions rule, could be properly invoked. Barrett, for example, expressed her ongoing concerns that, to the extent policy presumptions twist language away from its more natural meaning, they constitute a “judicial flex” at odds with textualism. Gorsuch, on the other hand, expressed confidence in the court’s authority to apply such presumptions even if they bring in values external to the text.
These debates come on the heels of several years of more isolated intra-textualist disputes, the most notable of which was the 2020 case of Bostock v. Clayton County, in which Justices Samuel Alito, Gorsuch, and Kavanaugh argued in three separate opinions over which one of them was the “real” textualist and who was, instead, a “pirate” (!). And already percolating is a new set of debates on whether textualism’s focus should remain, as it traditionally has, on Congress – that is, on how Congress uses words and presumptions about meaning – or instead on how the “ordinary person” would understand the text, a concept embraced especially by Gorsuch and Barrett. Putting aside the fiction that “ordinary people” even read our exceedingly complex and lengthy statutes, or that the nine justices of the court could likely discern how the average person would interpret statutes if they did read them, it should be clear that part of Jackson’s point relates to this debate, too. She continues to argue that consulting congressional intent and materials, rather than going it alone, is essential to the democratic legitimacy of the court’s statutory interpretation work.
We won’t know until next term whether Jackson’s new revolution has legs or will dissipate, but for now it has helped reinvigorate important debates that many thought were long over.
Recommended Citation: Abbe R. Gluck, Justice Jackson reignites the interpretation wars, adding to textualism’s emerging cracks, SCOTUSblog (Jul. 7, 2026, 10:00 AM), https://www.scotusblog.com/2026/07/justice-jackson-reignites-the-interpretation-wars-adding-to-textualisms-emerging-cracks/