Today I have the pleasure of speaking on the Washington University series of speakers at the Brookings Institution. Ironically, the speech is about the use of legislative history, an issue that was discussed much in Judge Amy Coney Barrett's confirmation hearing yesterday. I will therefore step away from blogging for an hour to appear virtually.
Judge Leventhal famously said that to rely on Legislative history is like "looking over a crowd and choosing your friends". Exxon Mobil Corp. v Allapattah Servs., Inc., 125 S. Ct. 2611, 2626 (2005) (cited Patricia Wald, Some Notes on the Use of Legislative History in the Supreme Court Tenure, 1981, 68 Iowa L. Rev. 195, 214 (1983)).
Judge Barrett clearly shares the same view as her mentor Justice Antonin Scalia on legislative history. Although she did not dismiss the value of such evidence on legislative grounds, she made it clear that it was not a source she would naturally turn to. Justice Scalia wrote:
It should not be possible, or at least not easy, to be sure that a certain outcome will be achieved in this Tribunal without showing that outcome on the front of the bill that both chambers are considering and voting, which the President approves, when it becomes law, the people must obey. I think we have an obligation to conduct our exegesis in a way that promotes this democratic process.
United States v Taylor, 487, US 326, 345-46 (1988) (Scalia, J., co.).