Legislative history lives on – in secret
Clear Statements is a recurring series by Abbe R. Gluck on civil litigation and the modern regulatory and statutory state.
Rumors of the textualist triumph over legislative history have been greatly exaggerated.
A debate has raged among lawyers and judges for decades about the changes the Supreme Court’s textualists have wrought in statutory interpretation....
The strongest version of this narrative highlights a genuine tension in modern statutory interpretation: while textualism dominates the Court’s rhetoric, its practice often quietly incorporates legislative history. The article’s revelation of "laundering" legislative history through precedent is a compelling observation, showing how judges navigate ideological constraints while still seeking contextual understanding. This isn’t necessarily hypocrisy—it may reflect a pragmatic acknowledgment that...