Justice Jackson Starts Statutory Interpretation Revolution

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1:48Policies provided by Hartford Fire Insurance Company and its property and casualty affiliates, Hartford, Connecticut. This is Bloomberg Law with June Grosso from Bloomberg Radio. Justice Ketanji Brown Jackson was in the majority in just 67 percent of the cases this term at the Supreme Court, making her the justice least often in the majority. But Jackson did lead the court in the number of dissents, writing 10. And in some of those dissents, Jackson may be trying to start a sort of statutory interpretation revolution. My guest is Abby Gluck, a professor at Yale Law School. She's written a piece in SCOTUS blog entitled, Justice Jackson Reignites the Interpretation Wars, Adding to Textualism's Emerging Cracks.

2:41Abby, did you see a thread running through Jackson's dissents? something unifying them, a line running through them? Yeah, it's a great question. I can't speak to all 10 of the dissents. The dissents that I've been watching in particular are the ones in cases involving statutes. And there has definitely been a pretty clear and consistent line across her dissents in statutory cases, in which Justice Jackson seems to be trying to convince her colleagues to pay more attention to Congress and congressional intent. In case after case, sometimes she's dissenting, sometimes she's concurring and saying, I'm going along with the judgment, but I have to pause and ask, why didn't we just ask what Congress intended?

3:25Why didn't we look at a committee report? Why didn't we consult the legislative record? And I do think it's part of a broader effort on her part to get the court to step back and be a little more deferential to the other branches, particularly Congress. We've already moved away from administrative deference to a large extent. But part of it is an effort to sort of get at the democratic legitimacy of the court. The next question is really, you know, how legislative history fits into a textualist analysis, I think. But before that, tell us about textualism on the court and how it became the dominant method of analysis, so different from when the late Justice Antonin Scalia was an advocate for it.

4:12Yeah, this is a fascinating story of evolution and revolution. You know, for a very long time, until the late 1980s, the Supreme Court, like many other courts across the world, was a common law eclectic court. The court would look at a variety of materials in every statutory case. They would look at the text, they would look at the congressional record, they would look to congressional intent, and they would look to all the evidence that was around before them. There was a very controversial case called Weber v. United Steelworkers, an early affirmative action case in which both the majority and the dissent, and the dissent was by Chief Justice Rehnquist, who was not Chief Justice yet at the time, were extremely legislative history heavy.

4:54That opinion led to the view of some that the court had gone too far afield, had strayed too far from the statutory text, and was taking liberties with interpretation. And it gave rise to a movement known as textualism that was foundational to the Reagan era Justice Department and spearheaded by well-known academics turned judges like Justice Scalia and Judge Frank Easterbrook, who still sits on the Seventh Circuit. And textualism began as an outlier. It began as a theory that advanced an idea that courts should only look to statutory text, maybe dictionaries, maybe to other sections in a statute, but they should not be looking at legislative materials that were not actually passed by Congress.

5:37It was a much narrower set of materials. Justice Scalia was a very persuasive advocate and very persuasive judge. And over time, dissents turned into majorities. Judges who were law students when textualism came of age became lawyers and judges and justices and academics. And over a 20-year period with many raging debates, majorities and dissents arguing over interpretive methodology. You would often see justices like Breyer and Stevens and Souter pushing back against textualism and saying, a democratically legitimate court should be looking to congressional materials, should be thinking about what Congress was actually trying to do.

6:18But over time, textualism became dominant. Then something interesting happened. Even as textualism became dominant, it sort of entered a second generation. The next generation of justices, including justices like Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, came on the court and started advancing their own versions of textualism, and they haven't always agreed with one another. One of the best examples is a case, Bostock 2020 case involving whether Title VII's civil rights protections apply to sexual orientation and discrimination. And that case saw three different opinions from three different textualists on the court arguing over what textualism is and how it should be applied and who's the real textualist in the room and who is just a faker, essentially.

7:03All of that is swirling around when Justice Ketanji Brown Jackson arrives on the scene. And, you know, as I've written elsewhere, kind of similarly to the entry of Justice Sotomayor on the scene when she first became a justice, Justice Jackson came in and said, you know, I'm not necessarily accepting this dominant methodology. I'm bringing with me my approach from the D.C. Circuit, which did look to text, but also looks to purpose and letters that have history and congressional intent. And she has brought that approach in case after case, this term, in a way that is really starting to make waves.

7:39With the other textualists on the court, is there any place in their analysis for legislative history? So it's pretty interesting. If you look across the court, there are textualists and there are textualists. So Justice Alito, when he was a judge on the Third Circuit, was known to be fond of legislative history. And as a justice on the Supreme Court, he does occasionally look to legislative history, including in that Bostock opinion that I just mentioned. There are other judges and justices who are proclaimed textualists, but look at legislative history every once in a while or do it in a more discreet way.

8:14So one interesting phenomenon that I've written about is we're increasingly seeing justices who associate with textualism citing the court's precedence from a prior era for propositions about congressional intent. So the court might say something like, you know, in X versus Y, we held that the purpose of this statute was to advance education as a hypothetical example. But in X versus Y, the court used legislative history to reach that result. So we are seeing what I've called elsewhere kind of a laundering of legislative history through the court's previous precedents in the pretextualist era.

8:52I think that goes to the point that it's really hard to interpret statutes without giving some consideration to what Congress was trying to do. And I think you've got some textualist judges who are caught between recognizing that and recognizing the importance of thinking about congressional purpose and the object of statutes and trying to be faithful to a methodology. It's absolutely the case that every once in a while you see justices like Kavanaugh and Chief Justice Roberts referencing legislative history in their opinion. It's not a 100 percent exclusionary rule, but more often than not, and much more often than not, they're not using legislative history on the face of the opinion.

9:29And one thing that Justice Jackson was getting at this term was why? You know, why not look at some extra materials to buttress the point that the court has reached? Why not say this is the democratically elected body that passed this statute? We've reached a particular conclusion based on the text of the statute. Let's look at legislative history and back it up. And in fact, in the 1970s and 1980s, that was actually a frequent approach of the court. They would look at the text and they would look at legislative history to kind of check themselves to make sure they got it right. In recognition of the democratic bona fides of Congress, certainly vis-a-vis the court.

10:06You've written that you're seeing other cracks in textualism's armor. Is that what you mean by it? I think there's a lot going on with textualism now. I think it's been a really fascinating term for law professors. I think a couple of different things are happening in textualism that are not about legislative history. There is definitely something going on with legislative history in the sense of Justice Jackson trying to stir the pot and trying to say effectively, this battle's not over yet, right? There's still more thinking to do about whether we really want to exclude these let us say of history materials.

10:39But you're also seeing fights among textualists about what it means to be a textualist. So in the Bostock case that I mentioned earlier, which was the case about whether Title VII's protections apply to sexual orientation discrimination, you saw three textualists arguing over what is the appropriate a time frame when you're looking at text. Are you thinking about the moment the text was enacted, what the Congress at the time would have thought? Are you thinking about what the text means today? There are those kinds of cracks. This term in a very high profile case, Learning Resources, which was the case that involved the challenge to Trump administration's tariffs, there were six separate opinions that were talking about different versions of statutory interpretation.

11:21And across those opinions, the justices were debating whether one of their favorite canons, the major questions rule, which is a presumption that Congress doesn't delegate big questions to agencies without being clear, whether that rule should apply only after a finding that the text is ambiguous. And across decades, there have been numerous presumptions, whether it's major questions or pro-federalism canons or the rule of lenity, which construes statutes favorably to our criminal defendants, in which the court has assumed that ambiguity was a trigger to open the door to all of these extra textual presumptions.

12:01And over the past several years, we've seen some justices saying, hey, maybe these presumptions are important enough that we're going to apply them even without an ambiguity finding. That's Justice Gorsuch's approach to the major questions doctrine. Justice Barrett has a problem with that approach. She called it, quote, a judicial flex, unquote. Pretty interesting, flavorful terminology. And so you're starting to see debates on that front, in addition to debates about when legislative history should be used or how it should be used. There's also an emerging debate about what the reference point of textualism should be, not just whether it's the words as used today versus the words as used when the statute was enacted, but is the question, what did Congress mean when it wrote the words, or is the question what the ordinary person would mean?

12:51And again, the question is which ordinary person? Highly educated ordinary person? A lawyer? A person of today? A person of yesterday? These are debates that are percolating. So just when one thought that the statutory interpretation wars were over, lots of really interesting questions are starting to arise again. And I think that does boil down to this notion that textualism isn't just one thing, and it's not as though there was one decisive battle and it's been won. It's that this has become a dominant methodology. A lot of people, myself included and many of my students included, grew up in this methodology.

13:30And perhaps it's not surprising to see mature lawyers who grew up in the textualist era starting to differentiate amongst themselves about how it should be applied and starting to debate what third-generation textualism should look like. Coming up next, I'll continue this conversation with Yale Law School Professor Abby Gluck. Is Justice Jackson shaking things up in other ways? This is Bloomberg. This message is brought to you by AppleCard. AppleCard lets you earn daily cash back on every purchase, every day. Applying the Wallet app on iPhone today. Subject to credit approval, AppleCard is issued by Goldman Sachs Bank USA Salt Lake City branch.

14:08Terms and more at AppleCard.com. Get the news you need in just 15 minutes. Start your day with Bloomberg Daybreak, the podcast with a global view on the stories that matter. I'm Nathan Hager. And I'm Karen Moscow. Join us each morning for curated stories on current events, politics, business, and foreign relations. Plus one conversation on the day's biggest developments, all in just 15 minutes. Subscribe to Bloomberg Daybreak for a precise, thoughtful take on the stories that matter. Listen to Bloomberg Daybreak each morning on Apple, Spotify, or anywhere you listen. Justice Ketanji Brown-Jackson joined the court in 2022, but she's already making a mark with her dissents.

14:47She led the court in the number of dissents this year, with some protesting the majority's refusal to consult legislative history in statutory cases. Is that adding to the emerging cracks in textualism? I've been talking to Yale Law School professor Abby Gluck. Abby, you were talking about the major questions doctrine. Tell us more about it. So the major pression section most often is traced back to a 1994 opinion by Justice Scalia called MCI. And in that opinion, Justice Scalia was interpreting the word modify and whether the word modify in a statute could be construed to give the agency the ability not just to modify a requirement, but to eliminate it.

15:32And Justice Scalia, in that opinion, said that we would presume that Congress would not delegate so big an authority without being clear. That was sort of left to lie for a while. And then fast forward six years later in 2000, there was a case called FDA versus Brandon Williamson, which was a challenge to the Clinton administration's decision to bring tobacco under the jurisdiction of the FDA. That's a pretty big administrative move and a controversial one. And Justice O 'Connor's opinion for the court went through a lot of different interpretive methods to reach the result, which was to say that they could not exercise that authority.

16:10And she again invoked that same sentence that Justice Scalia had put out in MCI, this idea that we would presume that Congress wouldn't delegate so big of a question to an agency without being clear. After that, experts wondered if this was a real thing, if it was a one-off doctrine, if it would be used again. And my own textbook had a section a couple of years ago that questioned whether this doctrine would exist into the future. Is it something that had legs? It appeared again in King v. Burwell, the major challenge to the Affordable Care Act in 2015. In that case, as you may recall, Chief Justice Roberts decided the question about whether the Affordable Care Act subsidies would apply to all the different insurance markets across the nation as opposed to just a subset.

16:58And he had this line that says, this is not a question for the IRS. It is instead our role. And implicit in that holding was this idea that it was too big a question for the agency. So many thought, hmm, this doctrine continues to exist. All was quiet once more until COVID hit. And in the context of COVID, we saw a series of administrative actions in the face of the pandemic that were muscular. And while the court displayed a lot of tolerance for those actions to a point, starting to in 2021, the court started to resist some of those exercises of executive authority. And in the Alabama Realtors case, which was a case about the use of an eviction moratorium to stop the spread of disease, whether that kind of authority was within the bounds of the CDC's authority, the court reintroduced this idea that some questions are just too big to be delegated to an agency without being clear.

17:54And then a succession of cases in COVID and thereafter, the court continued to use the major questions doctrine over and over again to the point that now it is clearly entrenched and of great significance, including being used against the president himself this year. Is there a particular dissent in which Justice Jackson really forcefully made the argument for consulting legislative history in statutory cases? Yes, I think there are a couple really interesting ones. Just looking at this term alone, there's so many to choose from. Talk about a couple of them. One is in the tariffs case, where she actually concurred in the result reached by the majority to object to her, quote, colleagues speculating needlessly, unquote, about the statute's meaning when she said, quote, quote, the court can and should consult the statute's legislative history to determine what Congress actually intended the statute to do.

18:50In another case, Chevron versus Placchamines Parish, she went in and she said that the court cannot, quote, faithfully discharge its duty, unquote, unless it, quote, considers all reliable evidence of congressional intent, including statutory and legislative history. So she's phrasing it as the court's democratic duty. And then in FS Credit Opportunities versus Soviet Capital, she actually went even further. And she said, quote, Congress, not the judiciary, decides you may enforce the law. And for that reason, courts should consult all reliable indicia of congressional intent, unquote. And she went on to talk about the idea that Congress's wishes were, in her words, unequivocally clear, and to marvel at why it would be the case that counter-majoritarian court in a democratic system would not look across the street to what Congress expressed when Congress, the drafter of statutes, enacted a law that was before the court that day.

19:51And while that might not sound controversial, it's interesting that it is controversial, right? For a long time, that was just the way courts interpreted statutes, looking at the text, looking at congressional materials, look at everything in front of you. People call that common law approach. They call it eclecticism. Justice Scalia really changed that by trying to create a narrower terrain. We can talk about whether that terrain is actually narrower. Many people will come in and say textualists introduced a whole lot of other things, dictionaries, presumptions. It's not really a narrower terrain, and that's a subject for another day.

20:25But for a while, legislative history use did go down significantly on the court. And that's why it's notable when you see all of these dissents and these concurrences, because there's a moment like, wow, someone is punching back after a long time. And this is not to say that you don't get occasional opinion still by Justice Dotomayor, who was very active on this point for a long time, and Justice Kagan, you know, and you do get occasional dissents, occasional uses of legislative history. But this is really the first time in quite a while in which someone has repeatedly been hammering home this idea that it is the court's duty to look across the street and consider what Congress was actually trying to do using the materials that Congress put out in connection with the statute to explain itself.

21:10Do you think Justice Jackson is sort of trying to shake things up with her dissents? You know, does she see herself as there to change things? Because it's not only with the legislative history, but she's also been really critical. In fact, in a speech at Yale, right, She was really critical of the court's use of the emergency or shadow docket. So she's really sort of coming out punching. I think she's certainly not shy. And she is certainly taking the position that she is entitled to bring her views to the table and that she's entitled to bring her perspective to the court. Her approach to methodology is one.

21:49Her approach to the shadow docket is another. But she's not alone in critiquing the shadow docket. I think if you look across the spectrum of justices, you can see that when they all came to the court, they all bring their own perspectives to the table and they may be expressed in different ways. Justice Gorsuch was a very unique kind of textualist. He's a textualist who really cares about looking at words sort of almost divorced from their historical context. He likes to look at words sort of in isolation. In Vostok, he looked at words in the context of their sort of present day meaning. He's focused a lot on what the regular person would think of a statute.

22:26That's a contribution that might not be as obvious as Justice Jackson's. But Justice Gorsuch also came to the court with an agenda about non-delegation, from which we've seen the end of Chevron and the rise of the major questions doctrine. So I think it's not that unusual to see a justice come to the court with new energy, wanting to put their stamp on things. I've written elsewhere that Justice Dotomayor in her first decade was a remarkably passionate defender of legislative history. She wrote a series of opinions that in case after case actually provoked separate opinions of Justice Scalia just to rebut her views on legislative history.

23:04That's another very exciting time for legislation professors. So I think it's fair to say that Justice Jackson is not afraid to bring her perspective to the court, even though she is the most junior justice. But I don't think she's unique in history or even among these justices on the court in bringing something new to the table when she joins the group. And finally, what's your take on the use of legislative history? So, look, I've done many, many studies on this. And my general view, my studies are generally based in Congress and in empirical studies of how congressional drafters think about legislative history and how they use it.

23:41And my basic take on it is that some legislative history is reliable and some legislative history is not reliable. And learning how Congress works and looking at which legislative history documents are consensus documents produced at the critical moments of debate, those are generally the most reliable legislative history documents. And of course, there's a lot of noise in there and smart justices have to be able to separate the wheat from the chaff. But judges do that all the time with evidence. And my view, I think, aligns with the views of those who use it. Judges like the late Chief Judge Kastman was a large proponent of legislative history, that it has its place along with other tools of Congress, but want us to be skeptical and look at reliable legislative history and make sure that the history you're using is representative of a critical mass of legislators, not just one person's view.

24:36And then it bears the initiative of reliability that can shed light on a situation. Very often, there's an adage that is directed at legislative history. The late Judge Leventhal made a comment at one point that it's like looking over a crowd and picking out your friends. I think anyone who studies statutory interpretation can tell you that virtually every tool of statutory interpretation, whether it's a dictionary definition, we all know the judges go dictionary shopping, or the variety of presumptions that judges can choose from, or the various parts of the U.S. Code that judges often look to to glean meaning for a particular statute under consideration or legislative history.

25:15There are a lot of choices. And being a good judge is looking at all of those materials and determining which are relevant in this situation and deploying them, but not necessarily excluding any one of those materials. Considered judgment looks at all the evidence before you and relies on what's most reliable. And I think legislative history fits into that bucket. And I think that that's the view of probably a majority of judges in the federal courts. The last thing I'll say on this is that Judge Richard Posner and I in 2018 did an empirical study where we surveyed several dozen federal appellate judges on many aspects of their interpretive approach.

25:57And almost all of them took the position about letters that have history that I've just relayed, that they don't buy into the idea that you would wholesale exclude it, but that you would look at it along with all the other tools you look at and pick out the most reliable evidence in any given situation to reach the right results. And I think that's a smart approach. It's such an interesting article. Thanks so much for joining me to talk about it, Abby. That's Professor Abby Gluck of Yale Law School. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law Podcast.

26:31You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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