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The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950

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The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950 -IHI: YI± LAW JA~SUJ KIL~ ~ NICHOLAS R. PARRILLO Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950 A B STRAC T. A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 198os, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The resulting debate between textualists and their opponents - a debate that has dominated statutory interpretation for a generation-cannot be truly understood unless we know how legislative history came to be such a common tool of interpretation to begin with. This question is not answered by the scholarly literature, which focuses on how reliance on legislative history became permissible as a matter of doctrine (in the Holy Trinity Church case in 1892), not on how it became normal, routine, and expected as a matter of judicial and lawyerly practice. The question of normalization is key, for legislative history has long been considered more difficult and costly to research than other interpretive sources. What kind of judge or lawyer would routinize the use of a source often considered intractable? Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user-a development integral to judges' larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation. A U T H 0 R. Associate Professor of Law, Yale Law School. For valuable conversations about the project, I thank Bruce Ackerman, Ian Ayres, James Q. Barrett, Joseph Blocher, James Brudney, Aaron-Andrew Bruhl, Josh Chafetz, Robert Ellickson, Daniel Ernst, William Eskridge, Heather Gerken, Abbe Gluck, Bob Gordon, Oona Hathaway, Daniel Ho, Christine Jolls, Dan Kahan, John Langbein, Robert Lieberman, Yair Listokin, John Manning, David Marcus, Jerry Mashaw, Tracey Meares, Thomas Merrill, Robert Post, Edward Purcell, Cristina Rodriguez, Susan Rose- Ackerman, Ted Ruger, Reuel Schiller, Alan Schwartz, Peter Strauss, Adrian Vermeule, Jim Whitman, and John Witt; and audiences for talks at Duke, Stanford, Yale, and the annual meeting of the American Society for Legal History. The quantitative aspect of the project was 266 made possible by the work of several excellent and dedicated research assistants: Allyson Bennett, Glenn Bridgman, Halley Epstein, Miles Farmer, Andrew Hammond, Tian Huang, Steven Kochevar, Stephen Petrany, Emily Rock, Clare Ryan, and Karun Tilak. For aid in obtaining sources, I thank the staffs of the Yale Law Library (particularly Sarah Kraus), the Harvard Law Library, the Columbia University Center for Oral History, the Library of Congress, the Franklin D. Roosevelt Presidential Library, the Harry S. Truman Presidential Library, the Margaret I. King Library at the University of Kentucky, the William L. Clements Library at the University of Michigan, and the National Archives; and Kim Dixon, Karen Needles, Doug Norwood, and Susan Strange. Glenn Bridgman generously shared data with me from his own research project. Alex Hemmer and his fellow members of the Yale Law Journal performed valuable work in editing and publishing the piece. I am grateful to Yale Law School for financial support. All errors are my own. All data produced for this project is available online at the Yale Law Journal's website (http://www.yalelawjournal.org). 267 ARTICLE CONTENTS INTRODUCTION 269 1. THE TIMING OF NORMALIZATION 287 A. Quantitative Evidence 287 B. Qualitative Evidence 294 II. EXPLAINING NORMALIZATION: NEW JUSTICES WITH NEW IDEAS 300 III. EXPLAINING NORMALIZATION: THE NEW ADMINISTRATIVE STATE 315 A. The Court's Reliance on the Federal Government for Legislative History 316 B. The Difficulty of Briefing Legislative History 319 C. The Federal Government's Unique Capacity to Brief Legislative History 328 D. The Federal Government's Turn Toward Briefing Legislative History 342 E. Non-Federal Lawyers Briefing Legislative History: The Importance of Lobbyists 352 F. The Court's Own Internal Research 361 G. The Minimal Role of the Lower Courts 365 IV. LEGISLATIVE HISTORY AS A STATIST TOOL OF INTERPRETATION 367 A. Legislative History to Bless the Bureaucratic Agenda 369 B. The Court Learns to Fight Fire with Fire 376 C. The "Washington Lawyer" as Adjunct of the State and User of Legislative History 379 D. Critics of Legislative History Statism: Frankfurter and Jackson 382 V. CONCLUSION: THEN TO NOW 388 APPENDIX 1: METHODOLOGY 393 APPENDIX II: LOBBYING CONNECTIONS OF LAWYERS AND LITIGANTS ON NON-FEDERAL BRIEFS HEAVILY CITING LEGISLATIVE HISTORY, 1938-41 404 268 LEVIATHAN AND INTERPRETIVE REVOLUTION INTRODUCTION When a legislature enacts a statute, it leaves behind a history: the revisions that lawmakers made to the bill, the things they said about it during committee deliberations and floor debates, and the public input they officially received on it from experts and other witnesses. Should a court, when interpreting the act, consider that history? For a generation, the field of American statutory interpretation has burned with controversy over this question. The controversy is a novelty of the last twenty-five years. In the 198os, legislative history was uncontroversial and very common. It appeared in more than half the U.S. Supreme Court's opinions on federal statutes.' In the high courts of leading states like New York, it likewise appeared frequently. Using this material meant that judges were accustomed to engaging actively and openly with legislators' discourse and policy reasoning. Beginning in the late 198os, however, a movement of judges and lawyers - led by Antonin Scalia - began to argue that this familiar interpretive resource was pernicious and should be banished from the judicial system. They urged a textualist method of statutory interpretation that would ignore an act's legislative history and focus more narrowly on its words. The legislative history of an act, warned Scalia and his allies, was a devil's playground: it contained such a huge number of assertions about the act's meaning, and those assertions were so contradictory and so easily inserted by manipulative politicians or lobbyists, that willful judges could always find support for whatever personal preferences they wished to impose. Adherence to the ordinary meaning of the text-the words on which lawmakers formally voted according to constitutional procedures -would do better at keeping judges accountable to the democratic will. Critics responded that Scalia was a false prophet. His method, they said, would not deliver the determinacy he promised, for text was often ambiguous (or became ambiguous when overtaken by events unforeseen by lawmakers), so textualist judges could just as easily impose their preferences, and all the more insidiously, since they would do so under the apolitical cloak of "ordinary meaning." Besides, added the critics, legislation 1. David S. Law & David Zaring, Law Versus Ideology: The Supreme Court and the Use of Legislative History, 51 WM. & MARY L. REV. 1653, 1716 fig.5 (2010). 2. For example, in 1990, New York's high court cited such material 57 times in its 123 cases, and not all those cases were even statutory. William H. Manz, The Citation Practices of the New York Court ofAppeals, 1850-1993, 43 BUFF. L. REV. 121, 143-44, 150 tbl.1, 163 tbl.23 (1995). 269 THE YALE LAW JOURNAL 123:266 2013 was meaningless without reference to policy, and what better source for understanding a statute's policy than legislative history?' Whichever side is right, there is no doubt that judicial practice has moved dramatically in Scalia's direction (even if his colleagues have not formally converted to his principle of complete exclusion). The proportion of U.S. Supreme Court opinions citing legislative history in statutory cases has fallen by more than half since the 1980s.4 The number of citations per statutory case has fallen even more steeply.5 At the state level-where legislatures have recently begun publishing legislative history far more extensively than in the past -courts have drawn upon textualist ideas to limit the new material's use.' Even leading defenders of legislative history concede parts of the textualist critique and look back with some embarrassment on how freely and easily the federal courts used such material twenty-five years ago.7 "[M]any 3. For two recent reviews of this debate, from opposing stances, see ANTONIN SCALUA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TExTs 369-90 (2012); and Robert A. Katzmann, Madison Lecture: Statutes, 87 N.Y.U. L. REv. 637, 661-82 (2012). In terms of citation practices, actual use of legislative history by the U.S. Supreme Court did not begin to decline until after 1985. Michael H. Koby, The Supreme Court's Declining Reliance on Legislative History: The Impact of Justice Scalia's Critique, 36 HARV. J. ON LEGIS. 369, 385 tbl.I (1999); Law & Zaring, supra note i, at 1716 fig.5. In terms of rhetoric and doctrine, however, some accounts suggest that the shift toward text began earlier, in the mid- to late 1970s, see Charles F. Lettow, Looking at Federal Administrative Law with a Constitutional Framework in Mind, 45 OKLA. L. REV. 5, 5-9, 31 (1992); [Richard H.
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