Document Type

Article

Publication Title

Berkeley Journal of Employment and Labor Law

Publication Date

2008

Abstract

This Article presents a strong case against the conventional wisdom that legislative history is a "politicized'" resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions-if true-should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When the eight liberal Justices use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors explain how liberal Justices use legislative history to illuminate the contours of complex statutory bargains that often favor conservative or pro-employer positions. After considering alternative explanations, the authors conclude that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion. The Article also describes how, in the face of Justice Scalia's fervent opposition to legislative history, liberal Justices since 1986 have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals' strategic restraint is that their use of legislative history in the remaining (mostly pro-employee) majority opinions appears more ideological than it was before Scalia joined the Court. Intriguingly, Justice Scalia's strong resistance to legislative history when used by liberal Justices does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues more of a free ride: he is as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

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