# Justice Jackson Starts Statutory Interpretation Revolution

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 9 Jul 2026, 24 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/6566e28d-f0df-4c0d-b6e3-b48201757681/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Abbe Gluck, a professor at Yale Law School, discusses Justice Ketanji Brown Jackson reigniting the statutory interpretation wars and whether some cracks are emerging in textualism. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: Justice Katanji Brown Jackson was in the majority in just
[0:12] Speaker 2: sixty seven percent of the cases this term at the
[0:15] Speaker 2: Supreme Court, making her the justice least often in the majority.
[0:20] Speaker 2: But Jackson did lead the Court in the number of descents,
[0:24] Speaker 2: writing ten, and in some of those descents, Jackson may
[0:28] Speaker 2: be trying to start a sort of statutory interpretation revolution.
[0:34] Speaker 2: My guest is Abby Gluck, a professor at Yale Law School.
[0:38] Speaker 2: She's written a piece in Scotis Blog entitled Justice Jackson
[0:42] Speaker 2: reignites the interpretation wars, adding to textualisms emerging cracks. Abby,
[0:48] Speaker 2: did you see a thread running through Jackson's descent, something
[0:53] Speaker 2: unifying them, a line running through them?
[0:56] Speaker 1: Yeah, it's a great question. I can't speak to all
[0:59] Speaker 1: ten of the day sense. The decense that I've been
[1:01] Speaker 1: watching in particular are the ones in cases involving statutes,
[1:05] Speaker 1: and there has definitely been a pretty clear and consistent
[1:08] Speaker 1: line across her descents and statutory cases in which Justice
[1:12] Speaker 1: Jackson seems to be trying to convince her colleagues to
[1:16] Speaker 1: pay more attention to congress and congressional intent. In case
[1:20] Speaker 1: after case. Sometimes she's dissenting, sometimes she's concurring and saying,
[1:25] Speaker 1: I'm going along with the judgment. But I have to
[1:27] Speaker 1: pause and ask, why didn't we just ask what Congress intended?
[1:32] Speaker 1: Why didn't we look at a committee report? Why didn't
[1:34] Speaker 1: we consult the legislative record? And I do think it's
[1:38] Speaker 1: part of a broader effort on her part to get
[1:43] Speaker 1: the Court to step back and be a little more
[1:46] Speaker 1: deferential to the other branches, particularly Congress. We've already moved
[1:50] Speaker 1: away from administrative difference to a large extent, but part
[1:53] Speaker 1: of it is an effort to sort of get at
[1:55] Speaker 1: the democratic legitimacy of the court.
[1:58] Speaker 2: The next question is, really, you know, how legislative history
[2:01] Speaker 2: fits into a textualist analysis. I think, but before that,
[2:05] Speaker 2: tell us about textualism on the court and how it
[2:09] Speaker 2: became the dominant method of analysis, so different from when
[2:14] Speaker 2: the late Justice Antonin Scalia was an advocate for it.
[2:18] Speaker 1: Yeah, this is a fascinating story of evolution and revolution.
[2:22] Speaker 1: You know, for a very long time, until the late
[2:25] Speaker 1: nineteen eighties, the Supreme Court, like many other courts across
[2:29] Speaker 1: the world, was a common law eclectic court. The court
[2:32] Speaker 1: would look at a variety of materials. In every statutory case,
[2:36] Speaker 1: they would look at the text, they would look at
[2:37] Speaker 1: the congressional record, they would look to congressional intent, and
[2:41] Speaker 1: they would look to all the evidence that was around
[2:43] Speaker 1: before them. There was a very controversial case Weber versus
[2:47] Speaker 1: United Steel Workers, an early affirmative action case in which
[2:51] Speaker 1: both the majority and the descent, and the descent was
[2:54] Speaker 1: by Chief Justice Renquist, who was not Chief Justice yet
[2:57] Speaker 1: at the time were extremely legislative story heavy. That opinion
[3:02] Speaker 1: led to the view of some that the Court had
[3:06] Speaker 1: gone too far. Afield had stray too far from the
[3:08] Speaker 1: statutory text and was taking liberties with interpretation, and it
[3:12] Speaker 1: gave rise to a movement known as textualism that was
[3:16] Speaker 1: foundational to the Reagan era Justice Department and spearheaded by
[3:20] Speaker 1: well known academics to turn judges like Justice Scalia and
[3:24] Speaker 1: Judge Frank Easterbrook, who still sits on the Seventh Circuit,
[3:27] Speaker 1: and Texualism began as an outlier. It began as a
[3:30] Speaker 1: theory that advanced an idea that courts should only look
[3:34] Speaker 1: to statutory texts, maybe dictionaries, maybe there are other sections
[3:37] Speaker 1: in a statute, but they should not be looking at
[3:40] Speaker 1: legislative materials that were not actually passed by Congress. It
[3:44] Speaker 1: was a much narrower set of materials. Jessice Scalia was
[3:48] Speaker 1: a very persuasive advocate and very persuasive judge, and over
[3:52] Speaker 1: time descents turned into majorities judges who were at law
[3:57] Speaker 1: students when texualism came of age, lawyers and judges and
[4:02] Speaker 1: justices and academics, and over a twenty year period, with
[4:07] Speaker 1: many raging debates, majorities and descents arguing over interpreted methodology,
[4:11] Speaker 1: you would often see justices like Briar and Stevens and
[4:14] Speaker 1: Suitor pushing back against textualism and saying a democratically legitimate
[4:19] Speaker 1: court should be looking to congressional materials, should be thinking
[4:22] Speaker 1: about what Congress was actually trying to do. But over
[4:25] Speaker 1: time textualism became dominant. Then something interesting happened. Even as
[4:30] Speaker 1: textualism became dominant, it sort of entered a second generation.
[4:34] Speaker 1: The next generation of justices, including justices like Amy Cony
[4:38] Speaker 1: Barrett and Neil Gorsitch Gret Kavanaugh, came on the court
[4:41] Speaker 1: and started advancing their own versions of textualism, and they
[4:45] Speaker 1: haven't always agreed with one another. One of the best
[4:47] Speaker 1: examples is the case Boss Doc twenty twenty case involving
[4:51] Speaker 1: whether Title seven's civil rights protections applied to sexual orientation
[4:56] Speaker 1: and discrimination. And that case saw three different opinions from
[5:00] Speaker 1: three different textualists on the Court arguing over what textualism
[5:04] Speaker 1: is and how it should be applied, and who's the
[5:06] Speaker 1: real textualist in the room and who's just a faker. Eventually,
[5:10] Speaker 1: all of that is swirling around when Justice Katanji Brown
[5:13] Speaker 1: Jackson arrives on the scene and you know, as I've
[5:17] Speaker 1: written elsewhere, kind of similarly to the entry of Justice
[5:21] Speaker 1: Soda Mayor on the scene when she first became a justice,
[5:25] Speaker 1: Justice Shackson came in and said, you know, I'm not
[5:27] Speaker 1: necessarily accepting this dominant methodology. I'm bringing with me my
[5:31] Speaker 1: approach from the d C Circuit, which did look to
[5:34] Speaker 1: text but also looks to purpose and let us out
[5:37] Speaker 1: of history and congressional intent. And she has brought that
[5:39] Speaker 1: approach in case after case, this charm in a way
[5:43] Speaker 1: that is really starting to make waves with the.
[5:45] Speaker 2: Other textulis on the court. Is there any place in
[5:48] Speaker 2: their analysis for legislative history.
[5:51] Speaker 1: So it's pretty interesting if you look across the court,
[5:54] Speaker 1: there are textualists, and there are textualists. So Justice Alito,
[5:58] Speaker 1: when he was a judge on the Third Circle, was
[6:00] Speaker 1: known to be fond of legislative history, and as a
[6:03] Speaker 1: justice on the Supreme Court, he does occasionally look to
[6:06] Speaker 1: legislative history, including in that boss Stock opinion that I
[6:10] Speaker 1: just mentioned. There are other judges and justices who are
[6:14] Speaker 1: proclaimed textualists but look at legislative history every once in
[6:18] Speaker 1: a while, or do it in a more discreet way.
[6:21] Speaker 1: So one interesting phenomenon that I've written about is we're
[6:25] Speaker 1: increasingly seeing justices who associate with textualism citing the court's
[6:30] Speaker 1: precedence from a prior era for the propositions about congressional intent.
[6:35] Speaker 1: So the court might say something like, you know, an
[6:38] Speaker 1: X versus Why, we held that the purpose of this
[6:40] Speaker 1: statute was to advance education, as a hypothetical example, but
[6:45] Speaker 1: in X versus Why, the Court used legislative history to
[6:48] Speaker 1: reach that result. So we are seeing what I've called
[6:52] Speaker 1: elsewhere kind of a laundering of legislative history through the
[6:55] Speaker 1: court's previous precedents in the pretextualist era. I think that
[6:59] Speaker 1: goes to the point that it's really hard to interpret
[7:02] Speaker 1: statutes without giving some consideration to what Congress was trying
[7:06] Speaker 1: to do. And I think you've got some textualist judges
[7:09] Speaker 1: who are caught between recognizing that and recognizing the importance
[7:12] Speaker 1: of thinking about congressional purpose and the object of statutes
[7:16] Speaker 1: and trying to be faithful to a methodology. It's absolutely
[7:20] Speaker 1: the case that every once in a while you see
[7:22] Speaker 1: Justices like Kavanaugh and Chief Justice Roberts referencing legislative history
[7:26] Speaker 1: in their opinion. That's not a one hundred percent exclusionary rule,
[7:29] Speaker 1: but more often than not, and much more often than not,
[7:32] Speaker 1: they're not using legislative history on the face of the opinion.
[7:35] Speaker 1: And one thing that Justice Jackson was getting at this
[7:38] Speaker 1: term was why, you know, why not look at some
[7:42] Speaker 1: extra materials to buttress the point that the Court has reached.
[7:46] Speaker 1: Why not say, this is the democratically elected body that
[7:49] Speaker 1: passed this statute. We've reached a particular conclusion based on
[7:52] Speaker 1: the text of the statute. Let's look at letislative history
[7:55] Speaker 1: and back it up. And in fact, in the nineteen
[7:58] Speaker 1: seventies and nineteen eighties, that was at actually a frequent
[8:01] Speaker 1: approach of the court. They would look at the text,
[8:03] Speaker 1: and they would look at letislative history to kind of
[8:05] Speaker 1: check themselves to make sure they got it right, and
[8:07] Speaker 1: recognition of the democratic bona fidees of Congress, certainly vis
[8:11] Speaker 1: A VI the Court.
[8:12] Speaker 2: You've written that you're seeing other cracks in textualism's armor.
[8:17] Speaker 2: Is that what you mean by it?
[8:19] Speaker 1: I think there's a lot going on with textualism now.
[8:21] Speaker 1: I think it's been a really fascinating term for law professors.
[8:25] Speaker 1: I think a couple of different things are happening in
[8:27] Speaker 1: textualism that are not about legislative history. There is definitely
[8:31] Speaker 1: something going on with legislative history in the sense of
[8:34] Speaker 1: Justice Jackson trying to stir the pot and trying to
[8:37] Speaker 1: say effectively, this battles not over yet, right, There's still
[8:41] Speaker 1: more thinking to do about whether we really want to
[8:43] Speaker 1: exclude these letislative history materials. But you're also seeing fights
[8:47] Speaker 1: among textualists about what it means to be a textualist.
[8:50] Speaker 1: So in the boss Stack case that I mentioned earlier,
[8:52] Speaker 1: which was the case about whether Title seven's protections apply
[8:56] Speaker 1: to sexual orientation discrimination, you saw three textists arguing over
[9:01] Speaker 1: what is the appropriate timeframe when you're looking at texts,
[9:05] Speaker 1: Are you thinking about the moment the text was enacted,
[9:07] Speaker 1: what the Congress at the time would have thought, or
[9:09] Speaker 1: you thinking about what the text means today. There are
[9:12] Speaker 1: those kinds of cracks. This chairman a very high profile case,
[9:15] Speaker 1: Learning Resources, which was the case that involved the challenge
[9:19] Speaker 1: to Trump administration's tariffs. There were six separate opinions that
[9:24] Speaker 1: we're talking about different versions of statutory interpretation, And across
[9:29] Speaker 1: those opinions, the justices were debating whether one of their
[9:32] Speaker 1: favorite canons, the major Questions rule, which is a presumption
[9:37] Speaker 1: that Congress doesn't delegate big questions to agencies without being
[9:40] Speaker 1: clear whether that rule should apply only after finding that
[9:45] Speaker 1: the text is ambiguous. And across decades, there have been
[9:50] Speaker 1: numerous presumptions, whether it's major questions or pro federalism canons,
[9:55] Speaker 1: or the rule of lenity, which construes statutes favorably to
[9:58] Speaker 1: our criminal defendants, in which the court has assumed that
[10:03] Speaker 1: ambiguity was a trigger to open the door to all
[10:05] Speaker 1: of these extra textual presumptions. And over the past couple
[10:08] Speaker 1: of years we've seen some justices saying, hey, maybe these
[10:12] Speaker 1: presumptions are important enough that we're going to apply them
[10:16] Speaker 1: even without an ambiguity finding. That's justice Gorse's's approach to
[10:19] Speaker 1: the major questions doctrine. Justice Barrett has a problem with
[10:22] Speaker 1: that approach. She called it, quote a judicial flex unquote,
[10:26] Speaker 1: pretty interesting, flavorful terminology, and so you're starting to see
[10:31] Speaker 1: debates on that front. In addition to debates about when,
[10:35] Speaker 1: let us later fishes should be used or how it
[10:37] Speaker 1: should be used, there's also an emerging debate about what
[10:42] Speaker 1: the reference point of textualism should be, not just whether
[10:46] Speaker 1: it's the words as used today versus the words as
[10:48] Speaker 1: used when the statute was enacted, but is the question
[10:52] Speaker 1: what did Congress mean when it wrote the words? Or
[10:55] Speaker 1: is the question what the ordinary person remain? And again
[10:58] Speaker 1: the question is which ordinary person highly educated, ordinary person,
[11:02] Speaker 1: a lawyer, a person of today, a person of yesterday.
[11:06] Speaker 1: These are debates that are percolating. So just when one
[11:09] Speaker 1: thought that the statutory interpretation wars were over, lots of
[11:13] Speaker 1: really interesting questions are starting to arise again. And I
[11:17] Speaker 1: think that does boil down to this notion that textualism
[11:21] Speaker 1: isn't just one thing, and it's not as though there
[11:25] Speaker 1: was one decisive battle and it's been one. It's that
[11:29] Speaker 1: it has become a dominant methodology A lot of people,
[11:32] Speaker 1: myself included, many of my students included, grew up in
[11:35] Speaker 1: this methodology, and perhaps it's not surprising to see mature
[11:40] Speaker 1: lawyers who grew up in the textualist era starting to
[11:44] Speaker 1: differentiate amongst themselves about how it should be applied and
[11:47] Speaker 1: starting to debate what third generation textualism should look like.
[11:51] Speaker 2: Coming up next, I'll continue this conversation with Yeh Law
[11:54] Speaker 2: School professor Abby Gluck. Is Justice Jackson shaking things up?
[11:58] Speaker 2: In other ways? This is Bloomberg. Justice Katanji Brown Jackson
[12:02] Speaker 2: joined the Court in twenty twenty two, but she's already
[12:06] Speaker 2: making a mark with her descents. She led the court
[12:09] Speaker 2: and the number of descents this year, with some protesting
[12:12] Speaker 2: the majority's refusal to consult legislative history in statutory cases.
[12:18] Speaker 2: Is that adding to the emerging cracks in textualism. I've
[12:22] Speaker 2: been talking to Yale Law School professor Abbi Gluck. Abby,
[12:26] Speaker 2: you were talking about the Major Questions doctrine. Tell us
[12:30] Speaker 2: more about it.
[12:31] Speaker 1: So the major Questions action most often is traced back
[12:35] Speaker 1: to a nineteen ninety four opinion by Justice Scalia called MCI,
[12:39] Speaker 1: and in that opinion, Justice Scalia was interpreting the word modify,
[12:44] Speaker 1: and rather the word modify in a statute could be
[12:47] Speaker 1: construed to give the agency the ability not just to
[12:51] Speaker 1: modify a requirement, but to eliminate it. And Justice Scalia
[12:55] Speaker 1: in that opinion said that we would presume that Congress
[12:59] Speaker 1: would not delegate so big of authority without being clear.
[13:03] Speaker 1: That was sort of left to lie for a while.
[13:05] Speaker 1: And then fast forward six years later, in two thousand,
[13:08] Speaker 1: there was a case called FDA versus Brandon Williamson, which
[13:12] Speaker 1: was a challenge to the Clinton administration's decision to bring
[13:16] Speaker 1: tobacco under the jurisdiction of the FDA. That's a pretty
[13:19] Speaker 1: big administrative move and a controversial one, and Justice O'Connor's
[13:23] Speaker 1: opinion for the Court went through a lot of different
[13:25] Speaker 1: interpretive methods to reach the result, which was to say
[13:29] Speaker 1: that they could not exercise that authority. And she again
[13:32] Speaker 1: invoked that same sentence that Jessice Scalia had put out
[13:36] Speaker 1: in MCI, this idea that we would presume that Congress
[13:39] Speaker 1: wouldn't delegate so big of a question to an agency
[13:42] Speaker 1: without being clear. After that, experts wondered if this was
[13:46] Speaker 1: a real thing, was a one off doctrine, if it
[13:50] Speaker 1: would be used again. My own textbook had a section
[13:53] Speaker 1: a couple of years ago that question whether this doctrine
[13:56] Speaker 1: would exist into the future. Is it something that had legs?
[14:00] Speaker 1: It appeared again in King versus Burwell, the major challenge
[14:04] Speaker 1: to the Affordable Care Act in twenty fifteen. In that case,
[14:08] Speaker 1: as you may recall, Chief Justice Roberts decided the question
[14:12] Speaker 1: about whether the Affordable Care Act subsidies would apply to
[14:15] Speaker 1: all the different insurance markets across the nation as opposed
[14:18] Speaker 1: to as a subset, and it had this line that says,
[14:22] Speaker 1: this is not a question for the irs, it is
[14:24] Speaker 1: instead our role and implicit in that holding with this
[14:28] Speaker 1: idea that it was too big a question for the agency.
[14:31] Speaker 1: So many thought this doctrine continues to exist. All was
[14:35] Speaker 1: quiet once more until COVID hit. And in the context
[14:39] Speaker 1: of COVID, we saw a series of administrative actions in
[14:42] Speaker 1: the face of the pandemic that were muscular, and while
[14:45] Speaker 1: the Court displayed a lot of tolerance for those actions
[14:48] Speaker 1: to a point, starting in twenty twenty one, the course
[14:51] Speaker 1: started to resist some of those exercises of executive authority,
[14:55] Speaker 1: and in the Alabama Realtor's case, which was a case
[14:58] Speaker 1: about the use of an eviction moratorium to stop the
[15:02] Speaker 1: spread of disease, whether that kind of authority was within
[15:05] Speaker 1: the bounds of the CDC's authority. The Court reintroduced this
[15:10] Speaker 1: idea that some questions are just too big to be
[15:13] Speaker 1: delegated to an agency without being clear, And then in
[15:16] Speaker 1: a succession of cases that in COVID and thereafter, the
[15:19] Speaker 1: Court continued to use the major questions doctrine over and
[15:23] Speaker 1: over again, to the point that now it is clearly
[15:26] Speaker 1: entrenched and of great significance, including being used against the
[15:30] Speaker 1: President himself this year.
[15:32] Speaker 2: Is there a particular dissent in which Justice Jackson really
[15:37] Speaker 2: forcefully made the argument for consulting legislative history in statutory cases.
[15:44] Speaker 1: Yes, I think there are a couple really interesting ones.
[15:46] Speaker 1: Just looking at this term alone, there's so many to
[15:48] Speaker 1: choose from. Talk about a couple of them. One is
[15:51] Speaker 1: in the tariffs case, where she actually concurred in the
[15:54] Speaker 1: result reached by the majority to object to her quote
[15:58] Speaker 1: colleague speculating needlessly unquote about the statute's meaning when she said, quote,
[16:04] Speaker 1: the Court can and should consult the statutes, let uslative
[16:07] Speaker 1: history to determine what Congress actually intended the statute to do.
[16:12] Speaker 1: In another case Chefron versus Lacamine's Parish, she went in
[16:16] Speaker 1: and she said that the court cannot quote faithfully discharge
[16:20] Speaker 1: its duty unquote unless it quote considers all reliable evidence
[16:26] Speaker 1: of congressional intent, including statutory and legislative history. So she's
[16:31] Speaker 1: phrasing it as the court's democratic duty. And then in
[16:34] Speaker 1: at Best Credit Opportunities versus saviec Capital, she actually went
[16:37] Speaker 1: even further and she said, quote Congress, not the judiciary,
[16:41] Speaker 1: decides who may enforce the law, and for that reason
[16:45] Speaker 1: Court should consult all reliable indisha of congressional intent unquote.
[16:51] Speaker 1: And she went on to talk about the idea that
[16:53] Speaker 1: Congress's wishes were, in her words, unequivocally clear, and to
[16:58] Speaker 1: marvel at why it would be the case that countermingeritarian
[17:02] Speaker 1: court in a democratic system would not look across the
[17:06] Speaker 1: street to what Congress expressed when Congress, the drafter of statutes,
[17:10] Speaker 1: enacted a law that was before the Court that day.
[17:13] Speaker 1: And while that might not sound controversial, it's interesting that
[17:16] Speaker 1: it is controversial. Right. For a long time, that was
[17:19] Speaker 1: just the way courts interpreted statutes, looking at the text,
[17:22] Speaker 1: looking at congressional materials, look at everything in front of you.
[17:25] Speaker 1: People call that common law approach, so they call it
[17:27] Speaker 1: a collecticism. Jessice Scullia really changed that by trying to
[17:31] Speaker 1: create an arrower terrain. We can talk about whether that
[17:35] Speaker 1: terrain is actually a narrower Many people will come in
[17:37] Speaker 1: and say textualists introduced a whole lot of other things, dictionaries, presumptions,
[17:42] Speaker 1: it's not really a narrower terrain. And that's the subject
[17:44] Speaker 1: for another day. But for a while, let us lative
[17:48] Speaker 1: history used did go down significantly on the court. And
[17:51] Speaker 1: that's why it's notable when you see all of these
[17:54] Speaker 1: discents and these concurrences, because there's a moment like, wow,
[17:57] Speaker 1: someone is punching back after a long time. And this
[18:00] Speaker 1: is not to say that you don't get occasional opinion
[18:02] Speaker 1: still by Justice out of my yor who was very
[18:04] Speaker 1: active on this point for a long time, and Justice Kegan,
[18:07] Speaker 1: you know, and you do get occasional sense occasional uses
[18:11] Speaker 1: of letislative history. But this is really the first time
[18:14] Speaker 1: in quite a while in where someone has repeatedly been
[18:17] Speaker 1: having home this idea that it is the court's duty
[18:21] Speaker 1: to look across the street and consider what Congress was
[18:24] Speaker 1: actually trying to do using the materials that Congress put
[18:28] Speaker 1: out in connection with the statute to explain itself.
[18:31] Speaker 2: Do you think Justice Jackson is sort of trying to
[18:34] Speaker 2: shake things up with her descents? You know, does she
[18:37] Speaker 2: see herself as there to change things, because it's not
[18:41] Speaker 2: only with the legislative history, but she's also been really critical.
[18:45] Speaker 2: In fact, in a speech at Yale, right, she was
[18:48] Speaker 2: really critical of the Court's use of the emergency or
[18:52] Speaker 2: shadow dockets. So she's really sort of coming out punching.
[18:56] Speaker 1: I think she's certainly not shy, and she is certainly
[19:00] Speaker 1: taking the position that she is entitled to bring her
[19:03] Speaker 1: views to the table, and that she's entitled to bring
[19:06] Speaker 1: her perspective to the court. Her approach methodology is one,
[19:10] Speaker 1: her post to the shadow docket is another. But she's
[19:12] Speaker 1: not alone in critiquing the shadow docket. I think if
[19:15] Speaker 1: you look across the spectrum of justices, you can see
[19:18] Speaker 1: that when they all came to the court, they all
[19:20] Speaker 1: bring us their own perspectives to the table, and they
[19:23] Speaker 1: may be expressed in different ways. Justice Gorsich was a
[19:27] Speaker 1: very unique kind of textualist. He's a textualist who really
[19:31] Speaker 1: cares about looking at words sort of almost divorced from
[19:34] Speaker 1: their historical context. He likes to look at words sort
[19:38] Speaker 1: of in isolation. In Vostok, he looked at words in
[19:41] Speaker 1: the context of the sort of present day meaning. He's
[19:44] Speaker 1: focused a lot on what the regular person would think
[19:46] Speaker 1: of a statute. That's a contribution. It might not be
[19:49] Speaker 1: as obvious as Justice Jackson's, but just as scor Sitch
[19:52] Speaker 1: also came to the Court with an agenda about non delegation,
[19:56] Speaker 1: from which we've seen the end of Chevron and the
[19:58] Speaker 1: rise of the major questions. So I think it's not
[20:01] Speaker 1: that unusual to see a justice come to the Court
[20:04] Speaker 1: with new energy, wanting to put their stamp on things.
[20:08] Speaker 1: I've written elsewhere that Justice dooda Mayor in her first decade,
[20:11] Speaker 1: was a remarkably passionate defender of legislative history. She wrote
[20:16] Speaker 1: a series of opinions that, in case after case, actually
[20:19] Speaker 1: provoked separate opinions of Justice Scalia just to rebut her
[20:23] Speaker 1: views on legislative history. That's another very exciting time for
[20:27] Speaker 1: legislation professors. So I think it's fair to say that
[20:30] Speaker 1: Justice Jackson is not afraid to bring her perspective to
[20:34] Speaker 1: the Court, even though she is the much g endor justice,
[20:37] Speaker 1: but I don't think she's unique in history or even
[20:39] Speaker 1: among these justices on the court and bringing something new
[20:42] Speaker 1: to the table when she joins the group.
[20:44] Speaker 2: And finally, what's your take on the use of legislative history.
[20:48] Speaker 1: So, look, I've done many, many studies on this and
[20:52] Speaker 1: my general view and my studies are generally based in
[20:56] Speaker 1: Congress and in empirical studies of how congressional drafters think
[21:00] Speaker 1: about letislative history and how they use it. My basic
[21:03] Speaker 1: take on it is that some legislative history is reliable
[21:07] Speaker 1: and some legislative history is not reliable, and learning how
[21:12] Speaker 1: Congress works and looking at which legislative history documents are
[21:15] Speaker 1: consensus documents produce the critical moments of debate, those are
[21:21] Speaker 1: generally the most reliable legislative history documents. And of course
[21:26] Speaker 1: there's a lot of noise in there, and smart justices
[21:28] Speaker 1: have to be able to separate the week from the chaff.
[21:31] Speaker 1: But judges do that all the time with evidence, and
[21:35] Speaker 1: my view I think aligns with the views of those
[21:38] Speaker 1: who use it. Judges, like the late Chief Judge Castman,
[21:41] Speaker 1: was a large proponent of legislative history, that it has
[21:44] Speaker 1: its place along with other tools of Congress, but want
[21:47] Speaker 1: us to be skeptical and look at reliable legislative history
[21:50] Speaker 1: and make sure that the history you're using is representative
[21:53] Speaker 1: of a critical mass of legislators, not just one person's view,
[21:58] Speaker 1: and then it bears the indusiaty of reliability that can
[22:00] Speaker 1: shed light on a situation. Very often, there's an adage
[22:04] Speaker 1: that is directed at legislative history. The late judge leve
[22:07] Speaker 1: Andhal made a comment at one point that it's like
[22:09] Speaker 1: looking over a crowd and picking out your friends. I
[22:12] Speaker 1: think anyone who studies statutory interpretation can tell you that
[22:17] Speaker 1: virtually every tool of statutory interpretation, whether it's a dictionary
[22:21] Speaker 1: definition we all know the judges go dictionary shopping, or
[22:25] Speaker 1: the variety of presumptions that judges can choose from, or
[22:28] Speaker 1: the various parts of the US Code that judges often
[22:31] Speaker 1: look to to glean meaning for a particular statute under
[22:34] Speaker 1: consideration or legislative history. There are a lot of choices,
[22:39] Speaker 1: and being a good judge is looking at all of
[22:41] Speaker 1: those materials and determining which are relevant in this situation
[22:44] Speaker 1: and deploying them, but not necessarily excluding any one of
[22:48] Speaker 1: those materials considered judgment looks at all the evidence before
[22:52] Speaker 1: you and relies on what's most reliable, and I think
[22:55] Speaker 1: legislative history fits into that bucket. And I think that
[22:58] Speaker 1: that's the view of probably a majority of judges in
[23:02] Speaker 1: the federal courts. The last thing I'll say on this
[23:04] Speaker 1: is that Judge Richard Posner and I in twenty eighteen
[23:09] Speaker 1: did an empirical study. We were resurveyed several dozen appellate
[23:14] Speaker 1: federal appellate judges on many aspects of their interpretive approach,
[23:18] Speaker 1: and almost all of them took the position about letfit
[23:22] Speaker 1: of history that I've just rained. That they don't buy
[23:25] Speaker 1: into the idea that you would wholesale exclude it, but
[23:28] Speaker 1: that you would look at it along with all the
[23:30] Speaker 1: other tools. You look at and pick out the most
[23:33] Speaker 1: reliable evidence in any given situation to reach the right results.
[23:37] Speaker 1: And I think that's a smart approach.
[23:38] Speaker 2: It's such an interesting article. Thanks so much for joining
[23:41] Speaker 2: me to talk about it. Abby. That's Professor Abby Gluck
[23:44] Speaker 2: of Yale Law School. And that's it for this edition
[23:46] Speaker 2: of the Bloomberg Law Show. Remember you can always get
[23:49] Speaker 2: the latest legal news on our Bloomberg Law podcast. You
[23:52] Speaker 2: can find them on Apple Podcasts, Spotify, and at www
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[24:01] Speaker 2: to tune into The Bloomberg Law Show every weeknight at
[24:04] Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
[24:07] Speaker 2: listening to Bloomberg

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