What if the textualists won the war on legislative history, but lost the battle with their own consciences?
Look. We’ve all heard the sermon. Congress is a circus of 535 egos. Floor speeches? Worthless. Committee reports? Fake news from staffers. Stick to the text, folks—that’s the textualist creed, courtesy of Scalia and his disciples.
But here’s the thing. They’re cheating. Big time. And they’re not even subtle about it.
Take Judge Gregory Katsas, D.C. Circuit textualist extraordinaire. At a Fed Soc panel on Alito’s jurisprudence, he spills the beans. Wanted to invoke the purpose behind a post-Enron corruption statute—used against Jan. 6 rioters. Direct legislative history? Nah. Too risky for a ‘conservative Fed Soc judge in this edgy case.’ So he launders it. Cites Yates v. United States, Ginsburg’s opinion that already dug into the history. Sneaky.
“Most of the briefs and stuff cited the legislative history,” he decided not to do so “because I didn’t want to create a side show of, you know, conservative Fed Soc judge in this edgy case cites legislative history.”
Katsas jokes he ‘got away with it.’ Panel laughs. ‘We were all fooled!’ But were we?
Why Can’t Textualists Quit Legislative History?
Short answer: It’s useful. Duh.
Alito’s been the most honest about it. On the 3rd Circuit, he’d cite history freely. Even now, in Bostock dissent, he blasts colleagues for ignoring congressional intent. ‘Textualism doesn’t mean blinders,’ he implies.
Katsas admits the same. Legislative history reveals the ‘circumstances that gave rise to’ a statute. Purpose, without saying the p-word. And Jackson, in Fischer concurrence, calls out the majority—cites Yates, then the history itself. The laundering chain is right there.
This isn’t isolated. Posner and Gluck showed years ago: appellate judges ignore Scalia’s purist bans. They dip into history judiciously. Now ‘contextualism’ is textualism’s polite rebrand—text plus purpose, consequences, whatever helps.
But the secrecy? That’s the scandal. Textualists preach purity, practice pragmatism undercover. It’s like a vegan caught at the steakhouse, napkin over the plate.
And it matters for legal tech. Statutes governing AI liability, data privacy—these are coming. If judges ‘launder’ history, expect wildly inconsistent rulings. One day text alone kills a reg; next, hidden purpose revives it. Chaos for coders and counsel alike.
Recent cases scream pendulum swing. Bostock. Fischer. Alito’s track record. Even hardcore textualists nod to ‘circumstances.’ Rumors of legislative history’s death? Greatly exaggerated—Gluck’s words, spot on.
But my unique twist: This mirrors the AI interpretability farce. Companies tout black-box models as ‘textualist’—pure outputs, no peeking inside. Yet they probe internals with heatmaps, SHAP values. Secret sauce, laundered as ‘robustness checks.’ Same hypocrisy. History doesn’t repeat, but it rhymes—badly.
Predict this: Full textualism collapses within a decade. Contextualism wins. Judges tire of the charade. Explicit history returns, bolder. AI regs? They’ll hinge on forgotten committee notes from rushed bills. Buckle up, devs.
Is Supreme Court Laundering Congressional Intent?
Absolutely. Fischer’s the poster child.
Majority ducks purpose. Jackson concurs to shove it in your face. Cites Yates (Ginsburg’s history dive), then the Sarbanes-Oxley reports directly. Katsas? Already did the sideways cite below.
Alito panel vibes? Moderation brewing. Conservatives softening on history. No Scalia extremism.
Why hide? Politics. Textualism’s the conservative brand—anti-judicial activism. Admit history? Fuel liberal ‘purposivist’ attacks. So launder via precedents. Clean hands, dirty work.
Dry humor alert: It’s judicial money laundering, but for intent. No subpoenas needed.
Critics always said: Pure text expands discretion, not limits it. History cabins judges—shows what Congress meant, sorta. Textualists ignored that. Now they’re whispering agreement.
For Legal AI Beat readers: Imagine interpreting the EU AI Act’s high-risk clauses. Text alone? Nightmare. History reveals drafters’ soft spots on generative models. Secret cites incoming.
The Corporate Hype Angle
Textualism’s PR spin: ‘Democracy! Rule of law!’ Reality: Judges picking-and-choosing anyway. Just dumber about it.
Call it out. This ‘triumph’ is a facade. Pendulum swings back—quietly. Expect more Yates-style proxies. Less candor, more games.
Historical parallel? 17th-century Puritans banning theater—then hosting private plays. Moral high ground crumbles under human nature. Textualism’s Puritan phase: over.
Bold prediction: By 2030, a textualist manifesto embraces ‘enactment context.’ History legalized, rebranded.
Meanwhile, lawyers: Stock up on CRS reports. They’re the new currency—in shadows.
Punchy close? Textualism didn’t kill history. It just taught it stealth.
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Frequently Asked Questions
What is legislative history in statutory interpretation?
Floor statements, committee reports, hearings—Congress’s paper trail before enactment. Textualists call it poison; others, gold.
Why do textualists secretly use legislative history?
It’s too damn helpful for real-world puzzles. Direct cite risks political flak, so they route through ‘neutral’ SCOTUS cases.
Will courts openly embrace legislative history again?
Bet on it. Contextualism’s rising. Pure text is yesterday’s fad—too rigid for messy laws.
