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The Paradoxical Impact of Scalia’s Campaign Against Legislative History

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Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. Stuart Benjamin discusses the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history.

Image courtesy of interviewee. February 20, 2024

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This video video discusses the impact of Justice Antonin Scalia's campaign against the use of legislative history in judicial decision-making, particularly focusing on how this has influenced the behavior of judges over time. The authors investigate whether Scalia's critiques led to a significant shift in judicial practice, analyzing over 240,000 published federal appellate opinions from 1965 to 2011.

The core questions addressed include: How did judges' citation practices regarding legislative history change in response to Scalia's textualist approach? Did these changes differ based on the judges' political affiliations or the timing of their appointments?

Key findings include:
1. Before the 1970s, judges commonly cited legislative history, with committee reports considered reliable and floor statements unreliable. This video video trend changed in the late 1980s, with Scalia's influence leading to Republican judges increasingly citing committee reports while reducing citations of floor statements.
2. Statistically significant differences emerged in citation practices between Republican and Democratic judges after Scalia's critiques began. Republican judges were less likely to cite unreliable legislative history, while they cited committee reports more frequently than their Democratic counterparts.
3. Post-Reagan judges of both parties demonstrated a marked decline in citing unreliable sources while favoring reliable committee reports over time.

The authors conclude that while Scalia succeeded in shifting the conversation around legislative history and encouraged a return to the reliance on committee reports, he did not achieve his goal of completely disregarding legislative history. Instead, judges adjusted their approaches to emphasize reliability without entirely rejecting legislative context. Overall, the study highlights the nuanced influence of political affiliation and the timing of judicial appointments on citation behavior in the legal system.

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Here are some of the key quotes from the video:

1. **Judicial Behavior and Intellectual Movements**:
- "One of the big questions in understanding judicial behavior is how, if at all, judges' behavior reflects intellectual movements..."

2. **Impact of Scalia's Campaign**:
- "We could analyze the impact of a campaign... against legislative history that was led by Scalia."

3. **Legislative History**:
- "The only thing Congress enacts is the video of the statute. So we should focus only on the video."

4. **Textualism vs. Purpose**:
- "...the debate in statutory construction for the last 40 years, videoualism versus purpose."

5. **Significance of Scalia's Influence**:
- "I think Scalia's gonna go down as one of the most important, most historic figures in the court."

6. **Historical Convideo of Citation Practices**:
- "In the later time period, there were statistically significant and pretty substantively large differences between Republican and democratic judges."

7. **Judicial Shift Due to Scalia's Influence**:
- "Scalia in fact shifted the debate... they actually went back to the pre-1970s approach of trusting in committee reports and not in floor statements..."

8. **Contradictory Outcomes**:
- "He wanted judges to ignore legislative history... Instead they went back to the pre-1970s regime."

9. **Broader Implications of the Findings**:
- "When we control for the political party of the judges, the differences between the pre and post Reagan cohorts are statistically significant and meaningful."

10. **Final Analyses**:
- "He influenced, but he did not persuade."

These quotes capture the essential arguments and findings of the discussion regarding judges' behavior, the influence of Justice Scalia, and the implications of their research on legislative history and judicial interpretation.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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One of the big questions in understanding judicial

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behavior is how, if at all, judges' behavior

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reflects intellectual movements, reflects various campaigns

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for or against particular approaches or methodologies.

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These questions are often difficult to answer,

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because maybe there's no good data available,

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or maybe the data, data don't allow

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for cleanly testing hypotheses.

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And for this project, my coauthor

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and I realized that if we were willing to spend the time,

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we could analyze the impact of a campaign, of,

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of this campaign against legislative history that was led

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by, Scalia.

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And it was interesting to us

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because people have long assumed that it had a big impact,

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and we wanted to test if that was so.

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So first things first, in congressional legislation,

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there usually is legislative history.

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Um, there are committee

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and conference reports that is the, the,

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the committee or the conference.

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That draft

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of legislation will then write a report explaining its

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rationale, usually will go section by section.

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Here's what we intended in this section,

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here's what we intended in another section.

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And then in addition to that, there are,

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statements at committee hearings that could be by any member

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of con Congress, could even be by a witness.

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And then statements on the floor of the house

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and the, and the Senate.

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And the consensus before the 1970s was that these committee

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and conference reports, I'll just refer to 'em

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as committee reports for convenience,

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but it's both were very reliable

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because those were written by the, the committee

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that actually wrote the legislation

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and that these statements in, in committee hearings

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and on the floor were not very reliable

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because that could be just one person giving the

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idiosyncratic, views.

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And so that consensus broke down in the 1970s

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when courts started increasingly citing not only committee

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reports, but also statements from committee

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hearings and from the floor.

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Then in the 1980s, several prominent

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Republican, federal judges, most notably

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DC Circuit Judge, and the later Supreme Court Justice

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and in Scalia, attacked the use of legislative history.

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Um, and the argument that Scalia made was,

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legislative history is not part of

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what Congress enacted.

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The only thing Congress enacts is the text of the statute.

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So we should focus only on the text.

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So this was associated with Scalia as a textualist

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as opposed to people who, judges who might look,

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or scholars who might look at the committee reports,

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sometimes called purpose of this.

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What, what was Congress's purpose?

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Let's look at the committee, committee report

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to understand the, the purpose.

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And that has been the debate in,

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in statutory construction for the last 40 years,

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textualism versus, purpose ofm.

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And to give you some idea of the,

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Of the significance of Scalia's role.

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Um, Elena Kagan, his colleague, said, I'm gonna,

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I'm gonna quote here, that she says,

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I think Scalia's gonna go down as one of the most important,

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most historic figures in the court.

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Why Justice Scalia has taught everybody how

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to do statutory interpretation differently.

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And I really do mean, do, do mean,

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pretty much taught everybody.

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And then next sentence,

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I think we're all textualists now.

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So that gives you some idea of the perceived significance,

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both of the debate and of Scalia's intervention in it,

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that we should focus only on the text.

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One of the basic facts in the background here is

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that the textualists were generally ideological

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conservatives, and those

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who were more interested in looking at legisl

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of history tended to be more ide ideologically liberal.

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So it's important to understand just as a background matter,

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that there was, some ideological valence to,

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to this, by the way.

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Why is that? We can, we can speculate.

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You might think that conservatives generally prefer,

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government to have somewhat less wide ranging authority

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and purposes as it was used often was, used to

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under to, to interpret the words of the text very broadly,

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and therefore give the government enhanced authority.

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In any event, the key for our purposes is that Scalia

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a ideological conservative, like most of those

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who are textualists and b, has a very clear message,

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do not cite legislative history, period.

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Ignore it. It has it, it is as relevant to the,

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to the statute as is the day of the week

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and the weather on the day that

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Congress enacted the, the statute.

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So don't cite it at all.

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So these two things then set up a nice hypothesis, which is,

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well, what was the response

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to Scalia's attacks on legislative history?

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Did judges in fact,

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start citing legislative history less

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in light of his attacks?

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And then more specifically, was there a,

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a partisan difference such that Republicans

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would be more affected

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by scalia's attacks than Democrats were?

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Then there's a, a second different hypothesis involving the

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diffusion of ideas that way that,

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things can just come to be in the air.

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And the question is, for the judges who came of age that is,

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they were appointed to the bench shortly before or during,

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or after Scalia's attacks regardless of party,

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were they less likely to cite to legislative history

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because his attacks just changed the conversation?

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Um, so that one question is Republicans versus Democrats.

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And another question is those a, appointed,

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before,

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before Ronald Reagan was the cutoff

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that we use on the theory

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that Reagan judges both were more ideological conservative,

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but also were just starting out when

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Scalia starts as attacks.

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Um, were the, were later judges of both parties less likely

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to cite legislative history than later judges of,

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earlier party.

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So we thought we had nice crisp two hypotheses

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where looking at the citations

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to legislative history would be very revealing

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because Scalia's in,

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injunction against using it was so clear.

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We analyzed all published federal appellate opinions.

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Majority opinions obviously is our, our focus

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between 1965 and 2011.

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That was more than 240,000 opinions

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that we were analyzing.

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And we spent a lot

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of time just being careful about exactly

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what we were searching for.

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This is, might be a little more in the, the weeds,

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but I'll just say very, very briefly,

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there are different ways that conference reports are cited,

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and we wanted to have every possible way

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and, you know, committee reports

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and statement four statements, et cetera.

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And we wanted to have every possible way of picking up all

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of the citations, to legislative history.

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We also, as a comparator, looked at citations

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to the United States Code that is the actual text

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of statutes and something called the Code

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of Federal Regulations, which is the text

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of regulations issued by agencies.

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Why did we do that? We, we wanted that

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because if we saw similar changes in those

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and in let us say of history, then maybe

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what we're picking up is not about legislative history,

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it's something else about judges just citing things more.

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So w we did that as as comparators.

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'cause those have nothing to do with legislative history.

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Just to be really clear, the text

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obviously is that legislative history.

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And these federal regulations are not legislative history.

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That's just the regulations that agencies come up with.

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W we thought it was useful in trying

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to look at the ideological effects to break down the,

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the, the time period.

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Remember 65 to 2011 into two periods, 65 to 85,

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and then 86 and later we picked 85.

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'cause that's when, that's when Scalia,

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started his attacks.

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And what we found was between 65

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and 85, there were no statistically significant differences

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in the citation practices of Republican

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and democratic judges.

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But in the later time period,

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there were statistically significant

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and pretty substantively large differences

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between Republican and democratic judges.

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But here's where it gets even more interesting.

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So citations to floor debates

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and committee hearings when to regard as the unreliable,

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sources of legislative history had risen

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for both Republican and Democratic judges between 65 and 85.

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That's consistent with our understanding

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that there was this rise in citations of these materials,

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starting in, in the 1970s for Republican judges.

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Those decreased dramatically in the 86 to 2011 period,

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much more so than they did for democratic judges.

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As for committee reports, Republican judges

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after in the, in the 86 to 2011 period started

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to cite them more often than democratic judges.

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So you had this significant increase in Republican judges'

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citations to committee reports

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after Scalia starts his attacks.

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And one other important point here is,

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and there were no clear patterns at all in any changes

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to citations to the United States code

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or to the Code of Federal regulations.

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So this is not a story of something else

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that's going on about the way judges write opinions.

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Um, generally then when we looked at the time period,

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so judges appointed before Reagan and,

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and those appointed Reagan

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or later the judges appointed before Reagan.

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This is the both parties were more likely to cite to

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floor statements and committee hearings,

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which have been regarded as unreliable

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before the 1970s, than were the Reagan

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or later judges.

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Um, and that the Reagan

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or later judges were more likely

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to cite two committee reports

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than the pre-reg judges, the both parties.

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When we combine political party

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and the appointing president, we find that

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three Reagan Democratic authors cite to

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floor debates and committee hearings more than,

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pre-Reg Republicans do.

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And post Reagan democratic authors cite

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to floor debates and committee hearings more than post

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Reagan Republicans do.

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What's sort of interesting is that with respect

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to committee reports, pre-Reg Democratic

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and Republican judges didn't change their behavior,

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whereas there was an explosion in citation

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to committee reports for post Reagan judges of both parties.

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And the rise was particularly striking

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for post Reagan Republican judges.

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So just to try to draw this through, line out,

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what we see is judges of both parties

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who were pre Reagan stuck with

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what they had been doing from the seventies where they were

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citing pretty liberally to reliable

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and unreliable latest hate history.

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Post Reagan judges of both parties had this divergence

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of citing less to the unreliable

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and more to the more reliable committee reports.

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And that was particularly strong

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for post Reagan Republicans.

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So, and,

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and really important point to drive home when we control

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for the political party of the judges, the differences

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between the pre

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and post Reagan cohorts are statistically

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significant and meaningful.

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And when we control for pre

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and post Reagan cohorts, the differences in citations

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between Democrats

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and Republicans are also

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systemly significant and meaningful.

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So this leads us to conclude that the political party

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of a judge and the presidential co cohort

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independently have impacts on judges' citation behavior.

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We hypothesized that Republican circuit judges would cite

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legislative history less often than democratic judges would

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once Scalia's attacks started.

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And that circuit judges nominated by Reagan

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or later would cite to legislative history in general

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less than pre-reg judges.

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What we found is more nuanced

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and frankly more interesting than that, which is

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that Republican judges

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and post Reagan judges were in fact less likely to cite to

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what had been regarded as the least reliable form

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of legislative history statements from the floor

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and from committee hearings,

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but more likely to cite to committee reports.

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So what we take from this is

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that Scalia in fact shifted the debate

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and he shifted to the debate in ways that we can see what

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all judges did, you know, Reagan and,

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and there a who were appointed by Reagan and thereafter

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and what Republican judges did.

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But the, those who were influenced

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by Scalia didn't reject legislative history.

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They actually went back to the pre 1970s approach of

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trusting in committee reports and not in floor statements

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and statements in committee hearings.

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So it did not lead to the broader rejection

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of legislative history

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that Scalia was in fact advocating for.

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So we think there's three, significant

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and interesting implications here.

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Um, the, the first is that, the influence

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of these various judges, was

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heavily based on their political party

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and when they were confirmed.

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So it really did matter

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that even if you were a Clinton judge,

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you behave differently than a Carter judge did.

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Uh, second, that a single justice was actually able

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to have a very significant influence.

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So in, there's one way in which Atlanta Kagan was right.

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Um, it's remarkable to have a single justice

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lead this campaign

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and help to change the way that,

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that judges behave.

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But the third thing is Scalia didn't get what he wanted.

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He wanted judges to ignore legislative history.

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Um, and that's not what they did.

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Instead they went back to the pre 1970s regime,

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which interestingly, had actually been advocated for by,

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some democratic judges who responded

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to Scalia's critiques by saying,

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don't throw out the baby with the bath water.

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We can still cite the committee reports,

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we just shouldn't cite to these other things.

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So ironically, or maybe from Scalia's standpoint,

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ironically, or maybe from his standpoint, frustratingly,

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he did get judges to reconsider how they were dealing

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with legislative history,

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but they didn't go with him to reject it.

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They actually went with what many people responding

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to Scalia had said, which is, no, let's just go back

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to the way things were before the nine, before the 1970s.

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So he wanted to convince judges

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to adopt Textualism, but they didn't.

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And so the way we think about it is that he influenced,

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but he did not persuade the.

00:00 - One of the big questions in understanding judicial behavior is how, if at all, judges' behavior reflects intellectual movements, reflects various campaigns for or against particular approaches or methodologies. These questions are often difficult to answer, because maybe there's no good data available,

00:19 - or maybe the data, data don't allow for cleanly testing hypotheses. And for this project, my coauthor and I realized that if we were willing to spend the time, we could analyze the impact of a campaign, of, of this campaign against legislative history that was led by, Scalia. And it was interesting to us because people have long assumed that it had a big impact, and we wanted to test if that was so.

00:45 - So first things first, in congressional legislation, there usually is legislative history. there are committee and conference reports that is the, the, the committee or the conference. That draft of legislation will then write a report explaining its rationale, usually will go section by section. Here's what we intended in this section, here's what we intended in another section.

01:06 - And then in addition to that, there are, statements at committee hearings that could be by any member of con Congress, could even be by a witness. And then statements on the floor of the house and the, and the Senate. And the consensus before the 1970s was that these committee and conference reports, I'll just refer to 'em as committee reports for convenience, but it's both were very reliable because those were written by the, the committee

01:31 - that actually wrote the legislation and that these statements in, in committee hearings and on the floor were not very reliable because that could be just one person giving the idiosyncratic, views. And so that consensus broke down in the 1970s when courts started increasingly citing not only committee reports, but also statements from committee hearings and from the floor. Then in the 1980s, several prominent

02:04 - Republican, federal judges, most notably DC Circuit Judge, and the later Supreme Court Justice and in Scalia, attacked the use of legislative history. and the argument that Scalia made was, legislative history is not part of what Congress enacted. The only thing Congress enacts is the text of the statute. So we should focus only on the text. So this was associated with Scalia as a textualist as opposed to people who, judges who might look,

02:37 - or scholars who might look at the committee reports, sometimes called purpose of this. What, what was Congress's purpose? Let's look at the committee, committee report to understand the, the purpose. And that has been the debate in, in statutory construction for the last 40 years, textualism versus, purpose ofm. And to give you some idea of the, Of the significance of Scalia's role.

03:02 - Elena Kagan, his colleague, said, I'm gonna, I'm gonna quote here, that she says, I think Scalia's gonna go down as one of the most important, most historic figures in the court. Why Justice Scalia has taught everybody how to do statutory interpretation differently. And I really do mean, do, do mean, pretty much taught everybody. And then next sentence, I think we're all textualists now.

03:28 - So that gives you some idea of the perceived significance, both of the debate and of Scalia's intervention in it, that we should focus only on the text. One of the basic facts in the background here is that the textualists were generally ideological conservatives, and those who were more interested in looking at legisl of history tended to be more ide ideologically liberal. So it's important to understand just as a background matter, that there was, some ideological valence to,

04:01 - to this, by the way. Why is that? We can, we can speculate. You might think that conservatives generally prefer, government to have somewhat less wide ranging authority and purposes as it was used often was, used to under to, to interpret the words of the text very broadly, and therefore give the government enhanced authority. In any event, the key for our purposes is that Scalia a ideological conservative, like most of those who are textualists and b, has a very clear message,

04:37 - do not cite legislative history, period. Ignore it. It has it, it is as relevant to the, to the statute as is the day of the week and the weather on the day that Congress enacted the, the statute. So don't cite it at all. So these two things then set up a nice hypothesis, which is, well, what was the response to Scalia's attacks on legislative history? Did judges in fact,

05:07 - start citing legislative history less in light of his attacks? And then more specifically, was there a, a partisan difference such that Republicans would be more affected by scalia's attacks than Democrats were? Then there's a, a second different hypothesis involving the diffusion of ideas that way that, things can just come to be in the air. And the question is, for the judges who came of age that is,

05:38 - they were appointed to the bench shortly before or during, or after Scalia's attacks regardless of party, were they less likely to cite to legislative history because his attacks just changed the conversation? so that one question is Republicans versus Democrats. And another question is those a, appointed, before, before Ronald Reagan was the cutoff that we use on the theory that Reagan judges both were more ideological conservative,

06:11 - but also were just starting out when Scalia starts as attacks. were the, were later judges of both parties less likely to cite legislative history than later judges of, earlier party. So we thought we had nice crisp two hypotheses where looking at the citations to legislative history would be very revealing because Scalia's in, injunction against using it was so clear.

06:39 - We analyzed all published federal appellate opinions. Majority opinions obviously is our, our focus between 1965 and 2011. That was more than 240,000 opinions that we were analyzing. And we spent a lot of time just being careful about exactly what we were searching for. This is, might be a little more in the, the weeds, but I'll just say very, very briefly,

07:08 - there are different ways that conference reports are cited, and we wanted to have every possible way and, you know, committee reports and statement four statements, et cetera. And we wanted to have every possible way of picking up all of the citations, to legislative history. We also, as a comparator, looked at citations to the United States Code that is the actual text of statutes and something called the Code of Federal Regulations, which is the text

07:38 - of regulations issued by agencies. Why did we do that? We, we wanted that because if we saw similar changes in those and in let us say of history, then maybe what we're picking up is not about legislative history, it's something else about judges just citing things more. So w we did that as as comparators. 'cause those have nothing to do with legislative history. Just to be really clear, the text obviously is that legislative history.

08:01 - And these federal regulations are not legislative history. That's just the regulations that agencies come up with. W we thought it was useful in trying to look at the ideological effects to break down the, the, the time period. Remember 65 to 2011 into two periods, 65 to 85, and then 86 and later we picked 85. 'cause that's when, that's when Scalia, started his attacks. And what we found was between 65

08:32 - and 85, there were no statistically significant differences in the citation practices of Republican and democratic judges. But in the later time period, there were statistically significant and pretty substantively large differences between Republican and democratic judges. But here's where it gets even more interesting. So citations to floor debates and committee hearings when to regard as the unreliable,

09:08 - sources of legislative history had risen for both Republican and Democratic judges between 65 and 85. That's consistent with our understanding that there was this rise in citations of these materials, starting in, in the 1970s for Republican judges. Those decreased dramatically in the 86 to 2011 period, much more so than they did for democratic judges. As for committee reports, Republican judges after in the, in the 86 to 2011 period started to cite them more often than democratic judges.

09:51 - So you had this significant increase in Republican judges' citations to committee reports after Scalia starts his attacks. And one other important point here is, and there were no clear patterns at all in any changes to citations to the United States code or to the Code of Federal regulations. So this is not a story of something else that's going on about the way judges write opinions. generally then when we looked at the time period,

10:19 - so judges appointed before Reagan and, and those appointed Reagan or later the judges appointed before Reagan. This is the both parties were more likely to cite to floor statements and committee hearings, which have been regarded as unreliable before the 1970s, than were the Reagan or later judges. and that the Reagan or later judges were more likely

10:50 - to cite two committee reports than the pre-reg judges, the both parties. When we combine political party and the appointing president, we find that three Reagan Democratic authors cite to floor debates and committee hearings more than, pre-Reg Republicans do. And post Reagan democratic authors cite to floor debates and committee hearings more than post Reagan Republicans do.

11:29 - What's sort of interesting is that with respect to committee reports, pre-Reg Democratic and Republican judges didn't change their behavior, whereas there was an explosion in citation to committee reports for post Reagan judges of both parties. And the rise was particularly striking for post Reagan Republican judges. So just to try to draw this through, line out, what we see is judges of both parties who were pre Reagan stuck with

12:08 - what they had been doing from the seventies where they were citing pretty liberally to reliable and unreliable latest hate history. Post Reagan judges of both parties had this divergence of citing less to the unreliable and more to the more reliable committee reports. And that was particularly strong for post Reagan Republicans. So, and, and really important point to drive home when we control

12:37 - for the political party of the judges, the differences between the pre and post Reagan cohorts are statistically significant and meaningful. And when we control for pre and post Reagan cohorts, the differences in citations between Democrats and Republicans are also systemly significant and meaningful. So this leads us to conclude that the political party

13:00 - of a judge and the presidential co cohort independently have impacts on judges' citation behavior. We hypothesized that Republican circuit judges would cite legislative history less often than democratic judges would once Scalia's attacks started. And that circuit judges nominated by Reagan or later would cite to legislative history in general less than pre-reg judges. What we found is more nuanced and frankly more interesting than that, which is

13:34 - that Republican judges and post Reagan judges were in fact less likely to cite to what had been regarded as the least reliable form of legislative history statements from the floor and from committee hearings, but more likely to cite to committee reports. So what we take from this is that Scalia in fact shifted the debate and he shifted to the debate in ways that we can see what all judges did, you know, Reagan and,

14:07 - and there a who were appointed by Reagan and thereafter and what Republican judges did. But the, those who were influenced by Scalia didn't reject legislative history. They actually went back to the pre 1970s approach of trusting in committee reports and not in floor statements and statements in committee hearings. So it did not lead to the broader rejection of legislative history that Scalia was in fact advocating for.

14:37 - So we think there's three, significant and interesting implications here. the, the first is that, the influence of these various judges, was heavily based on their political party and when they were confirmed. So it really did matter that even if you were a Clinton judge, you behave differently than a Carter judge did. second, that a single justice was actually able

15:07 - to have a very significant influence. So in, there's one way in which Atlanta Kagan was right. it's remarkable to have a single justice lead this campaign and help to change the way that, that judges behave. But the third thing is Scalia didn't get what he wanted. He wanted judges to ignore legislative history. and that's not what they did. Instead they went back to the pre 1970s regime,

15:41 - which interestingly, had actually been advocated for by, some democratic judges who responded to Scalia's critiques by saying, don't throw out the baby with the bath water. We can still cite the committee reports, we just shouldn't cite to these other things. So ironically, or maybe from Scalia's standpoint, ironically, or maybe from his standpoint, frustratingly, he did get judges to reconsider how they were dealing with legislative history,

16:11 - but they didn't go with him to reject it. They actually went with what many people responding to Scalia had said, which is, no, let's just go back to the way things were before the nine, before the 1970s. So he wanted to convince judges to adopt Textualism, but they didn't. And so the way we think about it is that he influenced, but he did not persuade the.

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