Over at Concurring Opinions, Anita S. Krishnakumar has a terrific post entitled Early Reflections on the Roberts Court and Legislative History. Here is a taste:
What emerges from this miniature dissection are a few tentative principles: (1) Six of the nine Justices are willing to consider legislative history; three are willing to do so in every statutory interpretation case to help divine the statute’s meaning in the first instance, while three are willing to do so only if they believe the text to be ambiguous or if the legislative history is used merely to back up a textual argument they find convincing; and (2) the unlikely trio of Souter, Kennedy, and Alito are the Court’s swing Justices with respect to reliance on legislative history. Any party or advocate possessing persuasive or “smoking gun” legislative history will have to convince at least two of these three Justices that such legislative history is consistent with the statute’s plain meaning or that it clarifies an otherwise ambiguous statutory provision in order to get these “swing” Justices to rely on that history.
