Document Type


Publication Title

Brooklyn Law Review



Publication Date



statutory construction, canons of construction, confirmatory legislative history


Textualists and intentionalists regularly lock horns over the proper approach to construing statutory language regarded as inconclusive. The interpretive debate seems less contentious, however, when the words of the law are deemed clear. There may be reasonable disagreement as to whether the text at issue in a particular controversy has a plain meaning, but if it does then that meaning arguably preempts further inquiry. Since 1990, Supreme Court majority opinions are replete with declarations such as: "Given [a] straightforward statutory command, there is no reason to resort to legislative history"; or "we do not resort to legislative history to cloud a statutory text that is clear"; or "[w]hen the words of a statute are unambiguous ... this first canon is also the last: 'judicial inquiry is complete.” Yet despite these ringing statements, the Court in fact often departs from its "first canon" by relying on legislative history to confirm or reinforce what it already has concluded is the plain meaning of statutory text. On numerous occasions since 2006, the Roberts Court has invoked legislative history as a confirmatory asset. Six of these majorities, including four cases decided during the 2009 term, have drawn sharp rebukes from Justice Scalia. Beyond expressing his general hostility toward legislative history, Justice Scalia has criticized the confirmatory use of legislative record evidence as incentivizing wasteful research by lawyers.' He discounts such reliance as a misleading makeweight that, although never the real reason for a court's decision, has disturbingly antidemocratic implications with respect to the role of judges. This essay takes issue with Justice Scalia's view of confirmatory legislative history. It maintains that persistent judicial reliance on such history reflects important shortcomings in the textualist approach. When courts move beyond the presumptively clear meaning of statutory language, they recognize-even if implicitly-that assertions of clarity can too often serve as either a mirage or a refuge. Clarity may be a mirage because apparently precise words or phrases often give rise to conflicting "plain meanings," and also because apparently assured readers of those words or phrases are conditioned to perceive clarity based on their own specialized training, background, and level of self-confidence. Assertions of clarity may serve as a refuge in that they obviate the need for judges to provide more complete explanations for their decisions. This aspiration for completeness, although not embraced by Justice Scalia, is important to many other judges as they seek to explain adjudicative resolutions before the diverse audiences to whom they are responsive and responsible. Part I reviews the use of confirmatory legislative history and identifies Justice Scalia's objections. Part II explains why judges continue to rely on such history, and how that reliance relates to the inadequacies of an overly language-based approach to statutory interpretation.