{"id":7942,"date":"2026-04-09T19:24:17","date_gmt":"2026-04-09T19:24:17","guid":{"rendered":"https:\/\/globalnewstoday.uk\/index.php\/2026\/04\/09\/legislative-history-lives-on-in-secret-scotusblog\/"},"modified":"2026-04-09T19:24:17","modified_gmt":"2026-04-09T19:24:17","slug":"legislative-history-lives-on-in-secret-scotusblog","status":"publish","type":"post","link":"https:\/\/globalnewstoday.uk\/index.php\/2026\/04\/09\/legislative-history-lives-on-in-secret-scotusblog\/","title":{"rendered":"Legislative history lives on \u2013 in secret – SCOTUSblog"},"content":{"rendered":"

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October term 2025
2025\/26 Applications
Featured
Majority Opinions
Roberts: 2
Thomas: 2
Alito: 1
Sotomayor: 3
Kagan: 3
Gorsuch: 2
Kavanaugh: 1
Barrett: 1
Jackson: 3
Clear Statements<\/a> <\/em>is a recurring series by Abbe R. Gluck<\/a> on civil litigation and the modern regulatory and statutory state.<\/em>
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\u2019s textualists have wrought in statutory interpretation. One of textualism\u2019s key moves has been to argue that congressional intent is inscrutable in a 535-member body and so congressional materials \u2013 especially legislative history, such as floor statements and committee reports from the enactment process \u2013 should not be considered, instead of an approach focused only on the words actually enacted. Critics have responded that interpreting statutory text divorced from the purpose or history of a statute\u2019s enactment actually enlarges, not cabins, judicial discretion and does not give sufficient respect to Congress\u2019 collective intentions or work-product.
But recent cases suggest the pendulum may be secretly swinging back. Whether the justices want to admit it or not, the court today is paying attention to legislative history and what it reveals about statutory purposes. And the \u201csecretly\u201d is the most intriguing part.
My phone was ablaze about two weeks ago with reports from a Federalist Society panel<\/a> at the University of Pennsylvania examining Justice Samuel Alito\u2019s statutory interpretation jurisprudence. Even though Alito is a self-proclaimed textualist, he has never fully eschewed legislative history. He looked to legislative history often when he was on the U.S. Court of Appeals for the 3rd Circuit and remains the most explicit user of congressional materials among the court\u2019s most committed textualists. Indeed, one of his best known dissents, his 2020 opinion in Bostock v. Clayton County<\/em><\/a>,<\/em> in which the court considered whether Title VII of the Civil Rights Act applies to sexual-orientation discrimination, chastised his fellow textualists for \u201cignor[ing] \u2026 congressional intent and legislative history.\u201d
The discussion of Alito\u2019s approach, however, opened the door to a much more interesting revelation. One panelist, U.S. Court of Appeals for the D.C. Circuit Judge Gregory Katsas, himself a textualist, not only stated that it can be helpful when construing a statute to understand the circumstances that gave rise to it \u2013 in other words the statute\u2019s general purpose, although the \u201cp\u201d word was never uttered \u2013 but he also noted that legislative history can be very helpful to understanding those circumstances.
But next came the kicker: Katsas referred to a recent dissent<\/a> he authored concerning the January 6 attack on the Capitol. He admitted that he himself wanted to reference the circumstances that gave rise to one of the governing statutes, a financial corruption law that came out of the Enron scandal but was being used to prosecute the assailants. Rather than cite the act\u2019s legislative history directly, however, Katsas explained that he chose instead to cite a Supreme Court case, which itself<\/em> announced the act\u2019s purpose only after consulting its legislative history. Specifically, Katsas stated that, although \u201cmost of the briefs and stuff cited the legislative history,\u201d he decided not to do so \u201cbecause I didn\u2019t want to create a side show of, you know, conservative Fed Soc judge in this edgy case cites legislative history.\u201d So instead he cited a page in Yates v United States<\/em><\/a> \u2013 <\/em>an opinion written by liberal purposivist Justice Ruth Bader Ginsburg, which itself relies directly on the act\u2019s legislative history to discern its purpose.
After telling this story, Katsas jokingly said that he \u201cgot away with it.\u201d One of Katsas\u2019 co-panelists joked back: \u201cwe were all fooled!\u201d
Indeed, when the same case, Fischer v. United <\/em>States<\/em><\/strong><\/a>, eventually reached the Supreme Court, Justice Ketanji Brown Jackson concurred specifically to object to the majority\u2019s failure to look to legislative purpose. She cited both Yates<\/em> and, then expressly, the legislative history that case relied on and that Katsas had admittedly laundered in.
There are a lot of things to say about the panel on Alito, including what seemed to be some general acceptance of his more open approach to legislative history. That in and of itself shows a moderating trend with respect to that tool, even by conservative textualists. Former Judge Richard Posner and I demonstrated previously<\/a> that many federal appellate judges long viewed exclusionary approaches to legislative history such as Justice Antonin Scalia\u2019s as too extreme, and find limited use of legislative history appropriate. Some textualist judges have recently started advocating for a new \u201ccontextualism<\/a>\u201d \u2013 a theory that emphasizes more inputs, sometimes including purposes and consequences as well as the text. It remains to be seen whether explicit legislative history references will increase as that approach develops.
But what about the laundering? The reluctance to say that consulting statutory purpose is helpful and citing instead an old precedent that itself cites legislative history \u2013 that\u2019s the really interesting part. It is also something that I\u2019ve been tracking<\/a> for some time. As it turns out, Katsas is far from alone. Indeed, most of the current textualist justices themselves routinely launder legislative history through precedent.
Court-watchers should care about this phenomenon for several reasons. First, as noted, lawyers briefing cases should know these materials still have sway. The court actually utilizes the concept of legislative purpose frequently, as my own research reveals, and legislative history, even if not explicitly cited in opinions, remains an important ingredient in the excavation of a statute\u2019s goals and motivating circumstances. Second, if you are an administrative-law aficionado transitioning to a post-Chevron<\/em> world<\/a>, you are probably trying to get your arms around the court\u2019s general statutory interpretation approach, since agency interpretations are now treated just like ordinary statutory interpretations. So, you need to understand that the textualist revolution, despite appearances, is not 100% complete.
Consider a few examples. Quarles v. United States<\/a><\/em> concerned the definition of burglary under the Armed Career Criminal Act. There, Justice Brett Kavanaugh did not cite directly to legislative history even as he discussed at some length Congress\u2019 intentions in defining the crime. Instead, he quoted another case which expressly relied on legislative history for a statement of statutory purpose. According to Kavanaugh, \u201c[a]s the Court recognized in Taylor<\/em>, Congress \u2018singled out burglary\u2019 because of its \u2018inherent potential for harm to persons.\u2019\u201d But Taylor<\/em><\/a> relied extensively on legislative history, including hearing transcripts and committee reports, to conclude: \u201cThe legislative history <\/em>also indicates that Congress singled out burglary \u2026 for inclusion as a predicate offense.\u201d
Or take the recent case of Wisconsin Bell, Inc. v. United States ex rel. Heath<\/em><\/a>, where Justice Clarence Thomas concurred to discuss the scope of the False Claims Act and placed significant reliance on the purpose and goals of that act. He noted that \u201c[w]e have said that the purpose of the FCA was \u2018to provide for restitution to the government of money taken from it by fraud,\u2019\u201d citing United States ex rel. Marcus v. Hess<\/em><\/a>, a 1943 case that itself relied on legislative history for its purposive conclusions, and also quoting United States v. McNinch<\/em><\/a> for the proposition that \u201cCongress enacted the FCA because it \u2018wanted to stop th[e] plundering of the public treasury.\u2019\u201d McNinch<\/em>, decided back in 1958, relied on testimony before Congress, citing the House and Senate reports, and concluded that \u201cthe language of that Act, read as a whole in the light of normal usage, and the available legislative history . . . le[a]d[s] to the conclusion that an application for credit insurance does not fairly come within the scope that Congress intended the Act to have.\u201d
There are numerous additional examples. Just one more will suffice.
In ZF Automotive US, Inc. v. Luxshare<\/em><\/a>, a case involving the construction of a discovery statute, Justice Amy Coney Barrett relied on a 2004 opinion authored by Justice Ginsburg, Intel Corp. v. Advanced Micro Devices, Inc.<\/em><\/a>, to describe the effect of an earlier amendment to the provision under consideration. <\/em>She wrote: \u201cAs we have previously observed, that shift created \u2018the possibility of U. S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad.\u201d The quote from Ginsburg\u2019s Intel <\/em>opinion was a direct quote <\/em>from a Senate report. But that Senate report wasn\u2019t cited in Barrett\u2019s opinion.
Ultimately, their laundering of legislative history reveals that the court\u2019s modern textualists are still caught in in some methodological cross hairs. I have previously written on SCOTUSblog about various other ways in which the court\u2019s textualists are now split over the tools they employ to interpret statutes. An earlier post<\/a> concerned divides over certain policy presumptions, known as canons of interpretation. But legislative history has an even longer pedigree and a recent history of coming under more aggressive attack. In other words, today\u2019s justices are grappling with what it means to be a textualist court.
As part of that examination, some justices, including the justices already discussed in this post, have claimed at times to care more about \u201cordinary meaning\u201d than how Congress understands the statutes it enacts. Barrett has argued<\/a> most emphatically against any approach that favors the congressional perspective. This is despite the fact that Congress has been the traditional referent in statutory interpretation cases for more than a century \u2013 judges, as Barrett herself has acknowledged<\/a>, have claimed since the dawn of the statutory era that their duty is to interpret statutes as \u201cfaithful agent[s] to the legislature.\u201d So this shift away from Congress, which I have detailed elsewhere<\/a>, is a big deal. But the secretive use of legislative history tells a different story. It reveals that the current court is trying to look away from Congress with one eye but can\u2019t help looking back at it with another. Even ordinary-meaning textualists at least recognize in the dark that Congress \u2013 and the purposes and history behind statutes \u2013 are important to a legitimate interpretation.
Deeper discussion of the ordinary meaning approach must await a different post. (Although let\u2019s face it, it\u2019s a fiction: ordinary people do not read federal statutes, and federal statutes are not narrative documents that are easily understandable even if someone tried to pick them up. An ordinary-meaning approach thus ultimately may give more power to judges to decide meaning for themselves.) But the continued, albeit subtle, reliance on legislative history and congressional purposes reveals a court which understands, on some level, that statutory interpretation without reference to Congress just doesn\u2019t make much sense.
Thank you, Judge Katsas, for cracking the door open just little bit.
Posted in Clear Statements<\/a>, Featured<\/a>, Recurring Columns<\/a>
Cases: Quarles v. United States<\/a>, ZF Automotive US, Inc. v. Luxshare, Ltd.<\/a>, Wisconsin Bell, Inc. v. United States, ex rel. Todd Heath<\/a>
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October term 20252025\/26 ApplicationsFeaturedMajority OpinionsRoberts: 2Thomas: 2Alito: 1Sotomayor: 3Kagan: 3Gorsuch: 2Kavanaugh: 1Barrett: 1Jackson: 3October term 20252025\/26 ApplicationsFeaturedMajority OpinionsRoberts: 2Thomas: 2Alito: 1Sotomayor: 3Kagan: 3Gorsuch: 2Kavanaugh: 1Barrett: 1Jackson: 3Clear 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 […]<\/p>\n","protected":false},"author":1,"featured_media":7943,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":{"0":"post-7942","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-politics"},"_links":{"self":[{"href":"https:\/\/globalnewstoday.uk\/index.php\/wp-json\/wp\/v2\/posts\/7942","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/globalnewstoday.uk\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/globalnewstoday.uk\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/globalnewstoday.uk\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/globalnewstoday.uk\/index.php\/wp-json\/wp\/v2\/comments?post=7942"}],"version-history":[{"count":0,"href":"https:\/\/globalnewstoday.uk\/index.php\/wp-json\/wp\/v2\/posts\/7942\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/globalnewstoday.uk\/index.php\/wp-json\/wp\/v2\/media\/7943"}],"wp:attachment":[{"href":"https:\/\/globalnewstoday.uk\/index.php\/wp-json\/wp\/v2\/media?parent=7942"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/globalnewstoday.uk\/index.php\/wp-json\/wp\/v2\/categories?post=7942"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/globalnewstoday.uk\/index.php\/wp-json\/wp\/v2\/tags?post=7942"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}