Anita S. Krishnakumar

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, this 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, this 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.

Introduction

The New Textualism¹ 1.“New Textualism” is a term coined by Professor William Eskridge to describe the statutory interpretation methodology advanced by Justice Scalia beginning in the late 1980s. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 & n.11 (1990).Show More championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes.² 2.See, e.g., Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 29–37 (1997) (“I object to the use of legislative history on principle.”); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1512 (1998) (“Doctrinally, the new textualism’s most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute.”).Show More A less well-known corollary of this interpretive approach is that Justice Scalia and his fellow textualists were and are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of a bill that ultimately became law or the original version of a statute that has since been amended—to speculate about a statute’s meaning. Indeed, textualist Justices regularly use such “statutory history”—the cold record of how a statute evolved from one version to the next—to draw inferences about a statute’s substantive meaning even as they criticize the use of other, more traditional forms of legislative history, such as committee reports or floor statements.

Consider two examples:

First, in Arizona v. United States, the Court considered whether federal law preempts an Arizona statute that regulates the behavior of immigrants who are unlawfully present in Arizona.³ 3.567 U.S. 387 (2012).Show More One of the state law provisions at issue made it a crime for illegal immigrants to seek employment.⁴ 4.Ariz. Rev. Stat. Ann. § 13-2928(C) (2011).Show More The Court, in an opinion authored by Justice Kennedy, ruled that the provision was preempted by federal law.⁵ 5.Arizona, 567 U.S. at 405.Show More In so ruling, the Court noted that Congress chose to impose civil, rather than criminal, penalties for immigrants who engage in unlawful employment—and backed this up with statutory history about the process by which the Immigration Reform and Control Act of 1986 (“IRCA”) was enacted.⁶ 6.See id.Show More Specifically, Justice Kennedy’s opinion noted that draft proposals to make unauthorized employment a criminal offense were introduced and “debated and discussed during the long process of drafting IRCA” and that “Congress rejected them.”⁷ 7.Id.Show More Based on this drafting history, the Court concluded that IRCA’s framework “reflects a considered judgment” by Congress that immigrants should not face criminal sanctions for engaging in unauthorized work.⁸ 8.Id.Show More

Second, in Nichols v. United States, the Court considered whether the Sex Offender Registration and Notification Act (“SORNA”) requires sex offenders who move out of state to update their registrations with the jurisdiction they have left.⁹ 9.136 S. Ct. 1113 (2016).Show More SORNA provides that “[a] sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved” to “inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.”¹⁰ 10.42 U.S.C. § 16913(c).Show More Nichols moved from Kansas, where he was a registered sex offender, to the Philippines—a foreign country not covered by SORNA—and neglected to register his departure with the state of Kansas; he was convicted of violating SORNA because he had failed to update his registration with Kansas.¹¹ 11.Nichols, 136 S. Ct. at 1117.Show More The Tenth Circuit upheld Nichols’ conviction, concluding that when a sex offender “leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved” under SORNA.¹² 12.Id.Show More In a unanimous opinion authored by Justice Alito, the Supreme Court disagreed, ruling instead that SORNA does not require sex offenders to update their registration in a state that they have departed.¹³ 13.See id.Show More In so ruling, the Court relied on the statute’s plain meaning, grammar rules, practical reasoning, and SORNA’s statutory history.¹⁴ 14.See id. at 1117–18.Show More Specifically, the Court noted that the Wetterling Act, a predecessor statute that SORNA replaced, explicitly required sex offenders to “report the change of address to the responsible agency in the State the person is leaving”—but that Congress declined to retain that language when it enacted SORNA.¹⁵ 15.See id. at 1116 (emphasis omitted).Show More “If the drafters of SORNA had thought about the problem of sex offenders who leave the country and had sought to require them to (de)register in the departure jurisdiction, they could easily have said so; indeed, that is exactly what the amended Wetterling Act had required,” the Court explained.¹⁶ 16.Id. at 1118.Show More Congress’s decision to employ different language in SORNA, the Court reasoned, was significant: if Congress wanted to require sex offenders to update their registrations in the states they departed, “Congress could have chosen to retain the language in the amended Wetterling Act.”¹⁷ 17.Id.Show More Because Congress chose not to do so, the Court concluded that SORNA did not require Nichols to update his registration in Kansas once he no longer resided there.¹⁸ 18.See id.Show More

In both of the above cases, the Court’s references to statutory history were designed to provide contextual support for its chosen statutory constructions. In highlighting that Congress considered and rejected a proposal to impose criminal penalties on immigrants who engage in unauthorized work and that Congress changed the Wetterling Act text requiring registration updates in the state of departure when it enacted SORNA, the Court sought to demonstrate that its reading of the relevant statutes’ texts was consistent with Congress’s likely intent. But it did so without citing the typical commentary by individual legislators or congressional committees that we ordinarily associate with the label “legislative history”—rather, it focused on changes Congress made to the statutes’ texts and on background legislative circumstances, and it used those developments to make its own inferences about Congress’s intent.

The inferences from statutory history employed by Justices Kennedy and Alito in Arizona and Nichols are not anomalous. Indeed, they are a fairly familiar feature of the Roberts Court’s statutory jurisprudence. But while the use of statutory history has been part of the Court’s interpretive arsenal for some time, scholars have paid surprisingly little attention to it as an interpretive resource. To date, only one article has examined the Court’s use of statutory history in any detail—and that article did so only briefly, in passing.¹⁹ 19.SeeJames Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688–89 (2017).Show More No article has studied the Court’s use of statutory history systematically, and no article has sought to illuminate the different types of inferences the Court draws from such history or to evaluate normatively the justifications offered for employing this form of history, in contrast to traditional legislative history.

This Article seeks to fill that void. It provides the first in-depth analysis of the multiple ways in which the modern Supreme Court uses statutory history to draw inferences about a statute’s intended meaning. While the Article is primarily doctrinal in nature, it draws from an empirical database of 574 statutory cases decided during the Roberts Court’s first thirteen-plus terms to supplement its analysis. Ultimately, this Article aims both to provide a catalogue of the different kinds of interpretive inferences the Court makes when examining a statute’s historical evolution—what the Article refers to as “statutory history”—as well as to evaluate whether textualist Justices’ willingness to employ statutory history can be squared with their unwillingness to examine traditional legislative history or other forms of background legislative context.

Five points stand out from the data and doctrinal analysis: (1) the Roberts Court’s overall use of statutory history is moderate—15.7% of the cases in the dataset employed such history; (2) all of the Justices, irrespective of their interpretive methodology, invoke statutory history in the opinions they author; (3) the Court’s most committed textualist Justices invoke statutory history more often than they invoke traditional legislative history; (4) there are at least five different forms of inferences that the Justices tend to draw from statutory history; and (5) nearly two-thirds of the statutory history inferences the Court employs conflict in some way with the parameters textualists have articulated to distinguish statutory history from traditional legislative history.

This Article proceeds in three Parts. Part I defines what is meant by the term “statutory history,” examines the ways in which this interpretive resource differs from traditional legislative history, and reviews the limited existing literature on statutory history. Part II reports data about the Roberts Court’s use of statutory history in the 574 statutory cases decided during its first thirteen-and-a-half terms. Part II also provides a catalogue of the different forms of inferences the Court draws from statutory history, as well as offers doctrinal observations about the Court’s use of this interpretive aid. Part III evaluates the theoretical implications of the Roberts Court’s approach to statutory history, noting that the decontextualized use of statutory history shifts to judges, rather than legislators, the authority to fill in the gaps between different versions of a statute—and that judges engage in substantial speculation when performing such gap filling. It argues that while some forms of statutory history approximate the logical inferences common to traditional textual analysis, others share important features in common with traditional purposive interpretive tools—and are thus inconsistent with the justifications textualists have offered for embracing statutory history while rejecting traditional legislative history. In the end, Part III suggests that textualist judges should either end their reliance on statutory history altogether or, better yet, broaden their interpretive toolkit to include other forms of background legislative contextual evidence, at least as a check on the inferences they draw from statutory history.

1. * Professor of Law, Georgetown University Law Center. I owe deep thanks for valuable insights and conversations to James J. Brudney, Aaron-Andrew Bruhl, Catherine B. Duryea, William N. Eskridge, Jr., Margaret H. Lemos, Kevin Tobia, and participants at workshops at Yale Law School and the University of Southern California School of Law. I am especially indebted to my husband, Ron Tucker, for his patience and support throughout this project. Thanks also to Deans William M. Treanor and Michael A. Simons of Georgetown University Law Center and St. John’s University School of Law, respectively, for generous research support. Kathryn Baldwin, John Burger, Danielle DelGrosso, Thomas Combs, Christina Corcoran, Brian Dolan, Sade Forte, Kim Friedman, Ilya Mordukhaev, Vince Nibali, Melissa Parres, Barbara Reilly, Jennifer Roseman, Peter Ryan, Christine Sammarco, Jonathan Sclar, Sean Kelly, Ashleigh Shelton, Samuel Sroka, Jennifer Thomas, Rita Wang, and Lissa Yang provided excellent research assistance, and Janet Ruiz-Kroll provided invaluable assistance with the tables. All errors are my own. ↑
2. “New Textualism” is a term coined by Professor William Eskridge to describe the statutory interpretation methodology advanced by Justice Scalia beginning in the late 1980s. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 & n.11 (1990). ↑
3. See, e.g., Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 29–37 (1997) (“I object to the use of legislative history on principle.”); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1512 (1998) (“Doctrinally, the new textualism’s most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute.”). ↑
4. 567 U.S. 387 (2012). ↑
5. Ariz. Rev. Stat. Ann. § 13-2928(C) (2011). ↑
6. Arizona, 567 U.S. at 405. ↑
7. See id. ↑
8. Id. ↑
9. Id. ↑
10. 136 S. Ct. 1113 (2016). ↑
11. 42 U.S.C. § 16913(c). ↑
12. Nichols, 136 S. Ct. at 1117. ↑
13. Id. ↑
14. See id. ↑
15. See id. at 1117–18. ↑
16. See id. at 1116 (emphasis omitted). ↑
17. Id. at 1118. ↑
18. Id. ↑
19. See id. ↑

20. See James Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688–89 (2017). ↑

This Article seeks to shed light on a little-noticed trend in recent U.S. Supreme Court statutory interpretation cases: the Court’s textualist Justices—or at least some subset of them—have proved remarkably willing to abandon stare decisis and to argue in favor of overruling established statutory interpretation precedents. This is especially curious given that statutory precedents are supposed to be sacrosanct. Congress, rather than the Court, is the preferred vehicle for correcting any errors in the judicial construction of a statute, and courts are to overrule such constructions only in rare, compelling circumstances. What, then, accounts for the textualist Justices’ unabashed willingness to overrule statutory precedents in recent years? And how can this practice be reconciled with textualism’s core aims of promoting clarity and stability in the law?

This Article advances a threefold thesis. First, it argues that the textualist Justices view precedents that create a test for implementing a statute (e.g., the “motivating factor” test for Title VII violations) as different from ordinary text-parsing statutory interpretation (e.g., “labor” means “manual labor”). More specifically, textualist jurists regard what I call “implementation test” precedents as akin to common-law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation-test exception” to the heightened stare decisis protection normally afforded statutory precedents. Second, the Article links textualist Justices’ proclivity for overruling to an oft-unspoken predicate assumption of textualism—that is, that there is a singular “correct answer” to every question of statutory interpretation. This assumption may make it especially difficult for textualist jurists to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. Last, the Article notes that some textualist jurists see themselves as “revolutionaries,” whose function is to overthrow the old, corrupt jurisprudential order, including outmoded precedents reached through the use of illegitimate, atextual interpretive resources.

Ultimately, the Article both supports and critiques textualist Justices’ approach to statutory precedents. On the one hand, it argues that a relaxed form of stare decisis for implementation test precedents makes sense for many reasons, as long as special deference is given to implementation tests that Congress has expressly endorsed. At the same time, it rejects textualists’ attempts to overrule non-implementation test precedents based on simple disagreement with the original interpretation.