Today I have the pleasure of speaking at Brookings Institution as part of the Washington University’s speaker’s series. Ironically, the speech is on the use of legislative history, a subject much discussed yesterday in the confirmation hearing of Judge Amy Coney Barrett. I will therefore step away from blogging for an hour to appear virtually.
Judge Leventhal famously said that relying on legislative history is like “looking over a crowd and picking out your friends.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 125 S. Ct.. 2611, 2626 (2005) (quoting Patricia Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983)).
Judge Barrett clearly has much of the same view of her mentor Justice Antonin Scalia on legislative history. While not discarding the value of such evidence on legislative intent, she clearly indicated that it is not a source that she would turn to as a matter of course. Justice Scalia wrote:
It should not be possible, or at least should not be easy, to be sure of obtaining a particular result in this Court without making that result apparent on the face of the bill which both Houses consider and vote upon, which the President approves, and which, if it becomes law, the people must obey. I think we have an obligation to conduct our exegesis in a fashion which fosters that democratic process.
United States v. Taylor, 487 U.S. 326, 345-46 (1988) (Scalia, J., concurring).