E. Alternative "Rule of Law'" Justifications: Coherence, Coordination,
III. LEGISLATIVE H ISTORY
The other primary interpretive source that courts consider-and the one whose use is most hotly contested-is legislative history.2 12 The battleground
209. SCALIA & GARNER, supra note 13, at xxviii.
210. Breyer, supra note 18, at 867; see also BREYER, supra note 19, at 92.
211. SCALIA & GARNER, supra note 13, at xxviii ("Nontextual interpretation ... makes 'statesmen' ofjudges .... ").
212. After seeming to reach an equilibrium, the debate over legislative history appears to have intensified again in recent years. See Gluck, supra note 203, at 1909 n.22 (collecting cases from Justice Sotomayor's first Term). For a few more recent examples, see Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1710 (2012) (stating that the text of the statute is clear and thus that legislative history need not be relied upon); id at 1711 (Breyer, J., concurring) (disagreeing that the relevant statutory text is clear and consulting legislative history); Cole- man v. Court of Appeals, 132 S. Ct. 1327, 1338 (2012) (Scalia, J., concurring in the judg- ment) (disagreeing with the plurality opinion's reliance on the legislative record rather than the text alone); Reynolds v. United States, 132 S. Ct. 975, 986 n.* (2012) (Scalia, J., dissent- ing) (arguing that the majority's consultation of legislative history is "superfluous"); Gonza- lez v. Thaler, 132 S. Ct. 641, 662-63 (2012) (Scalia, J., dissenting) (critiquing the Court's [Vol. 65:901
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here is different from the battleground over the canons. No one doubts that drafters are aware of legislative history or that they write it. Instead, the divide is over the constitutionality and effect on the legislative process of judicial reli- ance on legislative history and also its reliability as evidence of statutory mean- ing. The realities of the drafting process have direct relevance for the accuracy of the claims made by both sides.
Our survey inquired about these matters in thirty-seven separate questions, and our findings expose gaps in both theories. For textualism, our findings call into question that theory's main critiques of this interpretive tool. Textualists have argued that legislative history should not be consulted because it is not formally enacted213 and is not a reliable source of congressional intent-that no document can reflect the intent of a 535-member body, and that legislative his- tory serves more often as the spurious attempt of the "losers" to spin statutory meaning in their favor. 2 14 Some also contend that because committees draft legislative history, reliance on it represents a dangerous and unconstitutional delegation of lawmaking authority to subdivisions of Congress-or worse, sub- divisions of congressional staff (committee staff)2 15-who may not speak for the whole elected body. As a result, textualists look to canons (or dictionaries) before legislative history in their interpretive efforts.
Our findings suggest that many of the assumptions on which this critique relies are unfounded. Perhaps most importantly, legislative history was emphat- ically viewed by almost all of our respondents-Republicans and Democrats, majority and minority2 6-as the most important drafting and interpretive tool apart from text. Our respondents also made clear that the staff- and committee- focused concerns about delegation cannot be limited to legislative history alone, but rather also apply to statutory text: committees are responsible for text and legislative history alike. Nor is it the case that members of Congress-or even their staffs-are more engaged with textual drafting than with legislative use of legislative history); DePierre v. United States, 131 S. Ct. 2225, 2237-38 (2011) (Scal- ia, J., concurring in part and concurring in the judgment) (claiming that detours into legisla- tive history are "needless" and "not harmless"); and Bruesewitz v. Wyeth LLC, 131 S. Ct.
1068, 1081-82 (2011) (acknowledging that the legitimacy of legislative history is not accept- ed by all of the Justices).
213. See SCALIA, supra note 17, at 35.
214. See, e.g., id at 32-34; cf Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 STAN. L. REv. 1833,
1860-76 (1998) (focusing on how legislative history research taxes judicial competence).
215. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLuM. L. REV.
673, 698-99 (1997).
216. Q68b and Q77A. We discuss in the companion Article what might be deemed a twist on the "law-politics" divide in our findings. Although choice of interpretive methodol- ogy has been heavily politicized in courts, our respondents' political loyalties did not appear to affect their answers to our questions. Cf Katzmann, supra note 53, at 670 ("It is a biparti- san institutional perspective within Congress that courts should consider reliable legislative history and that failing to do so impugns Congress's workways.").
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966 STANFORD LAW REVIEW [Vol. 65:901 history drafting. In fact, many of our respondents said precisely the opposite:
members and their staffs focus more on legislative history, while the nonparti- san professional drafters in the Offices of Legislative Counsel focus on text.
FIGURE 6
Empirical Survey of 137 Congressional Staffers in Congress 2011-2012:
Legislative Drafters' Perceptions of Which Interpretive Principles Are Most Useful to Courts Seeking to Determine Congressional Intent
Legislative History Rules on Agency Deference SSubstantive Canons Textual Canons Other
News Media, Blogs, etc.
0.0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 Fraction of Respondents
Source: Q68.
Our findings also expose important weaknesses in how purposivists de- ploy this interpretive tool. Purposivism has paid little attention to which types of legislative history staffers themselves trust.2 17 Our respondents were quick to distinguish-in ways that courts have not-among different types of legisla- tive history and how they are used in different types of legislation.
Here, we note a possible limitation of our sample. It may be unsurprising that our respondents valued legislative history over other sources, given that legislative history is the committee staffer's primary work product. Although there is thus a risk that our respondents overstated their case, it seems unlikely that members would allow staff to spend as much time as they do on legislative 217. See Boudreau et al., supra note 98, at 974 ("[J]udges should trust only those sources that were trustworthy for the ... legislators who passed the bill .... Stated different- ly, if legislators in their conversations ignore certain sources of information because those sources are not trustworthy, then so should judges.").
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history if it were not valued. Moreover, even the majority of our Legislative Counsel respondents-who generally do not draft legislative history and most of whom said their preference was to include details in enacted text-told us that legislative history was an important tool for legislative drafters and courts alike.W28
Related to this point, we note here what we elaborate upon in the compan- ion Article: our respondents were not purposivists. The findings we relay in this Part should not be understood as their endorsement of that theory, even though in academic circles purposivism is associated with the use of legislative history.
Our respondents' emphasis on the utility of legislative history did not map onto a vision of judicial interpretation that looked like Justice Stevens's or Justice Breyer's. Rather, most of our respondents opposed the idea of purposive, for- ward-looking, or even pragmatic interpretation, and viewed legislative history as a tool that limited-rather than expanded-judicial discretion.
Finally, this series of questions drew out many of the same broader themes as did our questions about the other canons. In particular, the centrality of the committee system, the importance of the legislative process, and the relevance of personal factors about different drafters came to the fore. In addition, it was in this series of questions that a new theme-the significance of the nonparti- san congressional drafters in the Offices of Legislative Counsel-began to emerge.
A. Legislative History-Specific Delegation Concerns About Staff and