1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,960 --> 00:00:12,720 Speaker 2: Justice Katanji Brown Jackson was in the majority in just 3 00:00:12,840 --> 00:00:15,760 Speaker 2: sixty seven percent of the cases this term at the 4 00:00:15,800 --> 00:00:20,480 Speaker 2: Supreme Court, making her the justice least often in the majority. 5 00:00:20,840 --> 00:00:24,320 Speaker 2: But Jackson did lead the Court in the number of descents, 6 00:00:24,560 --> 00:00:28,640 Speaker 2: writing ten, and in some of those descents, Jackson may 7 00:00:28,640 --> 00:00:33,480 Speaker 2: be trying to start a sort of statutory interpretation revolution. 8 00:00:34,240 --> 00:00:37,440 Speaker 2: My guest is Abby Gluck, a professor at Yale Law School. 9 00:00:38,000 --> 00:00:42,320 Speaker 2: She's written a piece in Scotis Blog entitled Justice Jackson 10 00:00:42,479 --> 00:00:48,520 Speaker 2: reignites the interpretation wars, adding to textualisms emerging cracks. Abby, 11 00:00:48,560 --> 00:00:53,000 Speaker 2: did you see a thread running through Jackson's descent, something 12 00:00:53,560 --> 00:00:56,440 Speaker 2: unifying them, a line running through them? 13 00:00:56,680 --> 00:00:59,480 Speaker 1: Yeah, it's a great question. I can't speak to all 14 00:00:59,520 --> 00:01:01,560 Speaker 1: ten of the day sense. The decense that I've been 15 00:01:01,600 --> 00:01:05,040 Speaker 1: watching in particular are the ones in cases involving statutes, 16 00:01:05,120 --> 00:01:08,200 Speaker 1: and there has definitely been a pretty clear and consistent 17 00:01:08,280 --> 00:01:12,040 Speaker 1: line across her descents and statutory cases in which Justice 18 00:01:12,120 --> 00:01:16,280 Speaker 1: Jackson seems to be trying to convince her colleagues to 19 00:01:16,360 --> 00:01:20,520 Speaker 1: pay more attention to congress and congressional intent. In case 20 00:01:20,560 --> 00:01:24,520 Speaker 1: after case. Sometimes she's dissenting, sometimes she's concurring and saying, 21 00:01:25,000 --> 00:01:27,240 Speaker 1: I'm going along with the judgment. But I have to 22 00:01:27,280 --> 00:01:31,600 Speaker 1: pause and ask, why didn't we just ask what Congress intended? 23 00:01:32,000 --> 00:01:34,560 Speaker 1: Why didn't we look at a committee report? Why didn't 24 00:01:34,560 --> 00:01:38,720 Speaker 1: we consult the legislative record? And I do think it's 25 00:01:38,840 --> 00:01:43,160 Speaker 1: part of a broader effort on her part to get 26 00:01:43,200 --> 00:01:46,000 Speaker 1: the Court to step back and be a little more 27 00:01:46,000 --> 00:01:50,160 Speaker 1: deferential to the other branches, particularly Congress. We've already moved 28 00:01:50,160 --> 00:01:53,480 Speaker 1: away from administrative difference to a large extent, but part 29 00:01:53,520 --> 00:01:55,520 Speaker 1: of it is an effort to sort of get at 30 00:01:55,520 --> 00:01:57,440 Speaker 1: the democratic legitimacy of the court. 31 00:01:58,160 --> 00:02:01,320 Speaker 2: The next question is, really, you know, how legislative history 32 00:02:01,360 --> 00:02:05,040 Speaker 2: fits into a textualist analysis. I think, but before that, 33 00:02:05,600 --> 00:02:09,160 Speaker 2: tell us about textualism on the court and how it 34 00:02:09,240 --> 00:02:14,239 Speaker 2: became the dominant method of analysis, so different from when 35 00:02:14,280 --> 00:02:18,400 Speaker 2: the late Justice Antonin Scalia was an advocate for it. 36 00:02:18,840 --> 00:02:21,720 Speaker 1: Yeah, this is a fascinating story of evolution and revolution. 37 00:02:22,200 --> 00:02:25,000 Speaker 1: You know, for a very long time, until the late 38 00:02:25,080 --> 00:02:28,959 Speaker 1: nineteen eighties, the Supreme Court, like many other courts across 39 00:02:29,000 --> 00:02:32,160 Speaker 1: the world, was a common law eclectic court. The court 40 00:02:32,160 --> 00:02:35,840 Speaker 1: would look at a variety of materials. In every statutory case, 41 00:02:36,160 --> 00:02:37,760 Speaker 1: they would look at the text, they would look at 42 00:02:37,800 --> 00:02:41,000 Speaker 1: the congressional record, they would look to congressional intent, and 43 00:02:41,000 --> 00:02:43,079 Speaker 1: they would look to all the evidence that was around 44 00:02:43,120 --> 00:02:47,720 Speaker 1: before them. There was a very controversial case Weber versus 45 00:02:47,840 --> 00:02:51,480 Speaker 1: United Steel Workers, an early affirmative action case in which 46 00:02:51,560 --> 00:02:54,720 Speaker 1: both the majority and the descent, and the descent was 47 00:02:54,760 --> 00:02:57,400 Speaker 1: by Chief Justice Renquist, who was not Chief Justice yet 48 00:02:57,400 --> 00:03:02,120 Speaker 1: at the time were extremely legislative story heavy. That opinion 49 00:03:02,639 --> 00:03:06,079 Speaker 1: led to the view of some that the Court had 50 00:03:06,080 --> 00:03:08,320 Speaker 1: gone too far. Afield had stray too far from the 51 00:03:08,320 --> 00:03:12,280 Speaker 1: statutory text and was taking liberties with interpretation, and it 52 00:03:12,480 --> 00:03:15,840 Speaker 1: gave rise to a movement known as textualism that was 53 00:03:16,080 --> 00:03:20,040 Speaker 1: foundational to the Reagan era Justice Department and spearheaded by 54 00:03:20,040 --> 00:03:23,720 Speaker 1: well known academics to turn judges like Justice Scalia and 55 00:03:24,000 --> 00:03:26,800 Speaker 1: Judge Frank Easterbrook, who still sits on the Seventh Circuit, 56 00:03:27,000 --> 00:03:30,440 Speaker 1: and Texualism began as an outlier. It began as a 57 00:03:30,480 --> 00:03:34,280 Speaker 1: theory that advanced an idea that courts should only look 58 00:03:34,320 --> 00:03:37,840 Speaker 1: to statutory texts, maybe dictionaries, maybe there are other sections 59 00:03:37,840 --> 00:03:40,040 Speaker 1: in a statute, but they should not be looking at 60 00:03:40,120 --> 00:03:44,600 Speaker 1: legislative materials that were not actually passed by Congress. It 61 00:03:44,640 --> 00:03:48,920 Speaker 1: was a much narrower set of materials. Jessice Scalia was 62 00:03:48,960 --> 00:03:52,640 Speaker 1: a very persuasive advocate and very persuasive judge, and over 63 00:03:52,720 --> 00:03:57,680 Speaker 1: time descents turned into majorities judges who were at law 64 00:03:57,720 --> 00:04:02,040 Speaker 1: students when texualism came of age, lawyers and judges and 65 00:04:02,280 --> 00:04:06,960 Speaker 1: justices and academics, and over a twenty year period, with 66 00:04:07,200 --> 00:04:11,440 Speaker 1: many raging debates, majorities and descents arguing over interpreted methodology, 67 00:04:11,680 --> 00:04:14,160 Speaker 1: you would often see justices like Briar and Stevens and 68 00:04:14,200 --> 00:04:19,160 Speaker 1: Suitor pushing back against textualism and saying a democratically legitimate 69 00:04:19,160 --> 00:04:22,560 Speaker 1: court should be looking to congressional materials, should be thinking 70 00:04:22,600 --> 00:04:25,320 Speaker 1: about what Congress was actually trying to do. But over 71 00:04:25,400 --> 00:04:30,360 Speaker 1: time textualism became dominant. Then something interesting happened. Even as 72 00:04:30,360 --> 00:04:33,960 Speaker 1: textualism became dominant, it sort of entered a second generation. 73 00:04:34,680 --> 00:04:38,039 Speaker 1: The next generation of justices, including justices like Amy Cony 74 00:04:38,080 --> 00:04:41,279 Speaker 1: Barrett and Neil Gorsitch Gret Kavanaugh, came on the court 75 00:04:41,760 --> 00:04:45,080 Speaker 1: and started advancing their own versions of textualism, and they 76 00:04:45,080 --> 00:04:47,680 Speaker 1: haven't always agreed with one another. One of the best 77 00:04:47,720 --> 00:04:51,040 Speaker 1: examples is the case Boss Doc twenty twenty case involving 78 00:04:51,080 --> 00:04:55,960 Speaker 1: whether Title seven's civil rights protections applied to sexual orientation 79 00:04:56,040 --> 00:05:00,279 Speaker 1: and discrimination. And that case saw three different opinions from 80 00:05:00,360 --> 00:05:04,120 Speaker 1: three different textualists on the Court arguing over what textualism 81 00:05:04,240 --> 00:05:06,560 Speaker 1: is and how it should be applied, and who's the 82 00:05:06,600 --> 00:05:09,800 Speaker 1: real textualist in the room and who's just a faker. Eventually, 83 00:05:10,040 --> 00:05:13,839 Speaker 1: all of that is swirling around when Justice Katanji Brown 84 00:05:13,960 --> 00:05:17,560 Speaker 1: Jackson arrives on the scene and you know, as I've 85 00:05:17,560 --> 00:05:21,920 Speaker 1: written elsewhere, kind of similarly to the entry of Justice 86 00:05:21,960 --> 00:05:24,799 Speaker 1: Soda Mayor on the scene when she first became a justice, 87 00:05:25,240 --> 00:05:27,640 Speaker 1: Justice Shackson came in and said, you know, I'm not 88 00:05:27,640 --> 00:05:31,640 Speaker 1: necessarily accepting this dominant methodology. I'm bringing with me my 89 00:05:31,760 --> 00:05:34,720 Speaker 1: approach from the d C Circuit, which did look to 90 00:05:34,839 --> 00:05:37,160 Speaker 1: text but also looks to purpose and let us out 91 00:05:37,160 --> 00:05:39,719 Speaker 1: of history and congressional intent. And she has brought that 92 00:05:39,800 --> 00:05:43,320 Speaker 1: approach in case after case, this charm in a way 93 00:05:43,320 --> 00:05:45,960 Speaker 1: that is really starting to make waves with the. 94 00:05:45,960 --> 00:05:48,479 Speaker 2: Other textulis on the court. Is there any place in 95 00:05:48,480 --> 00:05:50,760 Speaker 2: their analysis for legislative history. 96 00:05:51,120 --> 00:05:54,119 Speaker 1: So it's pretty interesting if you look across the court, 97 00:05:54,560 --> 00:05:58,080 Speaker 1: there are textualists, and there are textualists. So Justice Alito, 98 00:05:58,400 --> 00:06:00,719 Speaker 1: when he was a judge on the Third Circle, was 99 00:06:00,800 --> 00:06:03,440 Speaker 1: known to be fond of legislative history, and as a 100 00:06:03,600 --> 00:06:06,520 Speaker 1: justice on the Supreme Court, he does occasionally look to 101 00:06:06,640 --> 00:06:09,880 Speaker 1: legislative history, including in that boss Stock opinion that I 102 00:06:10,000 --> 00:06:14,080 Speaker 1: just mentioned. There are other judges and justices who are 103 00:06:14,440 --> 00:06:18,400 Speaker 1: proclaimed textualists but look at legislative history every once in 104 00:06:18,440 --> 00:06:21,119 Speaker 1: a while, or do it in a more discreet way. 105 00:06:21,600 --> 00:06:25,400 Speaker 1: So one interesting phenomenon that I've written about is we're 106 00:06:25,400 --> 00:06:30,719 Speaker 1: increasingly seeing justices who associate with textualism citing the court's 107 00:06:30,800 --> 00:06:34,880 Speaker 1: precedence from a prior era for the propositions about congressional intent. 108 00:06:35,360 --> 00:06:38,000 Speaker 1: So the court might say something like, you know, an 109 00:06:38,120 --> 00:06:40,640 Speaker 1: X versus Why, we held that the purpose of this 110 00:06:40,720 --> 00:06:45,400 Speaker 1: statute was to advance education, as a hypothetical example, but 111 00:06:45,480 --> 00:06:48,719 Speaker 1: in X versus Why, the Court used legislative history to 112 00:06:48,839 --> 00:06:52,120 Speaker 1: reach that result. So we are seeing what I've called 113 00:06:52,160 --> 00:06:55,159 Speaker 1: elsewhere kind of a laundering of legislative history through the 114 00:06:55,160 --> 00:06:59,440 Speaker 1: court's previous precedents in the pretextualist era. I think that 115 00:06:59,720 --> 00:07:02,400 Speaker 1: goes to the point that it's really hard to interpret 116 00:07:02,440 --> 00:07:06,560 Speaker 1: statutes without giving some consideration to what Congress was trying 117 00:07:06,600 --> 00:07:09,360 Speaker 1: to do. And I think you've got some textualist judges 118 00:07:09,400 --> 00:07:12,800 Speaker 1: who are caught between recognizing that and recognizing the importance 119 00:07:12,800 --> 00:07:15,840 Speaker 1: of thinking about congressional purpose and the object of statutes 120 00:07:16,320 --> 00:07:20,360 Speaker 1: and trying to be faithful to a methodology. It's absolutely 121 00:07:20,360 --> 00:07:22,040 Speaker 1: the case that every once in a while you see 122 00:07:22,200 --> 00:07:26,160 Speaker 1: Justices like Kavanaugh and Chief Justice Roberts referencing legislative history 123 00:07:26,160 --> 00:07:29,040 Speaker 1: in their opinion. That's not a one hundred percent exclusionary rule, 124 00:07:29,360 --> 00:07:31,800 Speaker 1: but more often than not, and much more often than not, 125 00:07:32,240 --> 00:07:35,440 Speaker 1: they're not using legislative history on the face of the opinion. 126 00:07:35,640 --> 00:07:38,760 Speaker 1: And one thing that Justice Jackson was getting at this 127 00:07:38,960 --> 00:07:42,840 Speaker 1: term was why, you know, why not look at some 128 00:07:42,880 --> 00:07:45,880 Speaker 1: extra materials to buttress the point that the Court has reached. 129 00:07:46,200 --> 00:07:49,120 Speaker 1: Why not say, this is the democratically elected body that 130 00:07:49,200 --> 00:07:52,600 Speaker 1: passed this statute. We've reached a particular conclusion based on 131 00:07:52,920 --> 00:07:55,600 Speaker 1: the text of the statute. Let's look at letislative history 132 00:07:55,600 --> 00:07:58,280 Speaker 1: and back it up. And in fact, in the nineteen 133 00:07:58,320 --> 00:08:00,800 Speaker 1: seventies and nineteen eighties, that was at actually a frequent 134 00:08:01,160 --> 00:08:03,160 Speaker 1: approach of the court. They would look at the text, 135 00:08:03,200 --> 00:08:05,000 Speaker 1: and they would look at letislative history to kind of 136 00:08:05,080 --> 00:08:07,480 Speaker 1: check themselves to make sure they got it right, and 137 00:08:07,600 --> 00:08:11,600 Speaker 1: recognition of the democratic bona fidees of Congress, certainly vis 138 00:08:11,600 --> 00:08:12,360 Speaker 1: A VI the Court. 139 00:08:12,680 --> 00:08:17,240 Speaker 2: You've written that you're seeing other cracks in textualism's armor. 140 00:08:17,680 --> 00:08:18,760 Speaker 2: Is that what you mean by it? 141 00:08:19,240 --> 00:08:21,440 Speaker 1: I think there's a lot going on with textualism now. 142 00:08:21,440 --> 00:08:25,520 Speaker 1: I think it's been a really fascinating term for law professors. 143 00:08:25,840 --> 00:08:27,640 Speaker 1: I think a couple of different things are happening in 144 00:08:27,680 --> 00:08:31,360 Speaker 1: textualism that are not about legislative history. There is definitely 145 00:08:31,640 --> 00:08:34,200 Speaker 1: something going on with legislative history in the sense of 146 00:08:34,360 --> 00:08:37,200 Speaker 1: Justice Jackson trying to stir the pot and trying to 147 00:08:37,320 --> 00:08:41,160 Speaker 1: say effectively, this battles not over yet, right, There's still 148 00:08:41,160 --> 00:08:43,160 Speaker 1: more thinking to do about whether we really want to 149 00:08:43,200 --> 00:08:47,200 Speaker 1: exclude these letislative history materials. But you're also seeing fights 150 00:08:47,200 --> 00:08:49,800 Speaker 1: among textualists about what it means to be a textualist. 151 00:08:50,120 --> 00:08:52,800 Speaker 1: So in the boss Stack case that I mentioned earlier, 152 00:08:52,840 --> 00:08:56,720 Speaker 1: which was the case about whether Title seven's protections apply 153 00:08:56,840 --> 00:09:01,240 Speaker 1: to sexual orientation discrimination, you saw three textists arguing over 154 00:09:01,760 --> 00:09:05,080 Speaker 1: what is the appropriate timeframe when you're looking at texts, 155 00:09:05,240 --> 00:09:07,680 Speaker 1: Are you thinking about the moment the text was enacted, 156 00:09:07,760 --> 00:09:09,839 Speaker 1: what the Congress at the time would have thought, or 157 00:09:09,880 --> 00:09:12,080 Speaker 1: you thinking about what the text means today. There are 158 00:09:12,120 --> 00:09:15,679 Speaker 1: those kinds of cracks. This chairman a very high profile case, 159 00:09:15,800 --> 00:09:19,600 Speaker 1: Learning Resources, which was the case that involved the challenge 160 00:09:19,679 --> 00:09:24,480 Speaker 1: to Trump administration's tariffs. There were six separate opinions that 161 00:09:24,520 --> 00:09:29,280 Speaker 1: we're talking about different versions of statutory interpretation, And across 162 00:09:29,280 --> 00:09:32,640 Speaker 1: those opinions, the justices were debating whether one of their 163 00:09:32,679 --> 00:09:37,199 Speaker 1: favorite canons, the major Questions rule, which is a presumption 164 00:09:37,440 --> 00:09:40,840 Speaker 1: that Congress doesn't delegate big questions to agencies without being 165 00:09:40,920 --> 00:09:45,360 Speaker 1: clear whether that rule should apply only after finding that 166 00:09:45,440 --> 00:09:50,160 Speaker 1: the text is ambiguous. And across decades, there have been 167 00:09:50,480 --> 00:09:55,079 Speaker 1: numerous presumptions, whether it's major questions or pro federalism canons, 168 00:09:55,160 --> 00:09:58,559 Speaker 1: or the rule of lenity, which construes statutes favorably to 169 00:09:58,600 --> 00:10:02,880 Speaker 1: our criminal defendants, in which the court has assumed that 170 00:10:03,080 --> 00:10:05,600 Speaker 1: ambiguity was a trigger to open the door to all 171 00:10:05,600 --> 00:10:08,600 Speaker 1: of these extra textual presumptions. And over the past couple 172 00:10:08,600 --> 00:10:12,679 Speaker 1: of years we've seen some justices saying, hey, maybe these 173 00:10:12,720 --> 00:10:15,760 Speaker 1: presumptions are important enough that we're going to apply them 174 00:10:16,000 --> 00:10:19,720 Speaker 1: even without an ambiguity finding. That's justice Gorse's's approach to 175 00:10:19,760 --> 00:10:22,680 Speaker 1: the major questions doctrine. Justice Barrett has a problem with 176 00:10:22,720 --> 00:10:26,760 Speaker 1: that approach. She called it, quote a judicial flex unquote, 177 00:10:26,920 --> 00:10:31,080 Speaker 1: pretty interesting, flavorful terminology, and so you're starting to see 178 00:10:31,280 --> 00:10:35,280 Speaker 1: debates on that front. In addition to debates about when, 179 00:10:35,360 --> 00:10:37,720 Speaker 1: let us later fishes should be used or how it 180 00:10:37,760 --> 00:10:42,520 Speaker 1: should be used, there's also an emerging debate about what 181 00:10:42,640 --> 00:10:46,120 Speaker 1: the reference point of textualism should be, not just whether 182 00:10:46,200 --> 00:10:48,680 Speaker 1: it's the words as used today versus the words as 183 00:10:48,840 --> 00:10:51,880 Speaker 1: used when the statute was enacted, but is the question 184 00:10:52,240 --> 00:10:55,120 Speaker 1: what did Congress mean when it wrote the words? Or 185 00:10:55,200 --> 00:10:58,240 Speaker 1: is the question what the ordinary person remain? And again 186 00:10:58,280 --> 00:11:02,120 Speaker 1: the question is which ordinary person highly educated, ordinary person, 187 00:11:02,360 --> 00:11:05,679 Speaker 1: a lawyer, a person of today, a person of yesterday. 188 00:11:06,160 --> 00:11:09,440 Speaker 1: These are debates that are percolating. So just when one 189 00:11:09,480 --> 00:11:13,840 Speaker 1: thought that the statutory interpretation wars were over, lots of 190 00:11:13,880 --> 00:11:17,640 Speaker 1: really interesting questions are starting to arise again. And I 191 00:11:17,679 --> 00:11:21,199 Speaker 1: think that does boil down to this notion that textualism 192 00:11:21,240 --> 00:11:25,160 Speaker 1: isn't just one thing, and it's not as though there 193 00:11:25,240 --> 00:11:28,440 Speaker 1: was one decisive battle and it's been one. It's that 194 00:11:29,000 --> 00:11:32,680 Speaker 1: it has become a dominant methodology A lot of people, 195 00:11:32,760 --> 00:11:35,400 Speaker 1: myself included, many of my students included, grew up in 196 00:11:35,440 --> 00:11:40,360 Speaker 1: this methodology, and perhaps it's not surprising to see mature 197 00:11:40,480 --> 00:11:43,960 Speaker 1: lawyers who grew up in the textualist era starting to 198 00:11:44,040 --> 00:11:47,040 Speaker 1: differentiate amongst themselves about how it should be applied and 199 00:11:47,080 --> 00:11:50,920 Speaker 1: starting to debate what third generation textualism should look like. 200 00:11:51,280 --> 00:11:54,320 Speaker 2: Coming up next, I'll continue this conversation with Yeh Law 201 00:11:54,320 --> 00:11:58,480 Speaker 2: School professor Abby Gluck. Is Justice Jackson shaking things up? 202 00:11:58,520 --> 00:12:02,760 Speaker 2: In other ways? This is Bloomberg. Justice Katanji Brown Jackson 203 00:12:02,960 --> 00:12:06,240 Speaker 2: joined the Court in twenty twenty two, but she's already 204 00:12:06,280 --> 00:12:09,280 Speaker 2: making a mark with her descents. She led the court 205 00:12:09,320 --> 00:12:12,719 Speaker 2: and the number of descents this year, with some protesting 206 00:12:12,760 --> 00:12:18,040 Speaker 2: the majority's refusal to consult legislative history in statutory cases. 207 00:12:18,720 --> 00:12:22,800 Speaker 2: Is that adding to the emerging cracks in textualism. I've 208 00:12:22,800 --> 00:12:26,400 Speaker 2: been talking to Yale Law School professor Abbi Gluck. Abby, 209 00:12:26,480 --> 00:12:30,439 Speaker 2: you were talking about the Major Questions doctrine. Tell us 210 00:12:30,440 --> 00:12:31,160 Speaker 2: more about it. 211 00:12:31,679 --> 00:12:35,640 Speaker 1: So the major Questions action most often is traced back 212 00:12:35,679 --> 00:12:39,359 Speaker 1: to a nineteen ninety four opinion by Justice Scalia called MCI, 213 00:12:39,520 --> 00:12:44,640 Speaker 1: and in that opinion, Justice Scalia was interpreting the word modify, 214 00:12:44,840 --> 00:12:47,840 Speaker 1: and rather the word modify in a statute could be 215 00:12:47,960 --> 00:12:51,440 Speaker 1: construed to give the agency the ability not just to 216 00:12:51,480 --> 00:12:55,600 Speaker 1: modify a requirement, but to eliminate it. And Justice Scalia 217 00:12:55,720 --> 00:12:59,160 Speaker 1: in that opinion said that we would presume that Congress 218 00:12:59,200 --> 00:13:02,880 Speaker 1: would not delegate so big of authority without being clear. 219 00:13:03,160 --> 00:13:05,440 Speaker 1: That was sort of left to lie for a while. 220 00:13:05,880 --> 00:13:08,800 Speaker 1: And then fast forward six years later, in two thousand, 221 00:13:08,880 --> 00:13:12,080 Speaker 1: there was a case called FDA versus Brandon Williamson, which 222 00:13:12,120 --> 00:13:16,120 Speaker 1: was a challenge to the Clinton administration's decision to bring 223 00:13:16,160 --> 00:13:19,240 Speaker 1: tobacco under the jurisdiction of the FDA. That's a pretty 224 00:13:19,240 --> 00:13:23,280 Speaker 1: big administrative move and a controversial one, and Justice O'Connor's 225 00:13:23,320 --> 00:13:25,600 Speaker 1: opinion for the Court went through a lot of different 226 00:13:25,640 --> 00:13:29,000 Speaker 1: interpretive methods to reach the result, which was to say 227 00:13:29,040 --> 00:13:32,720 Speaker 1: that they could not exercise that authority. And she again 228 00:13:32,840 --> 00:13:36,120 Speaker 1: invoked that same sentence that Jessice Scalia had put out 229 00:13:36,400 --> 00:13:39,760 Speaker 1: in MCI, this idea that we would presume that Congress 230 00:13:39,760 --> 00:13:42,679 Speaker 1: wouldn't delegate so big of a question to an agency 231 00:13:42,800 --> 00:13:46,760 Speaker 1: without being clear. After that, experts wondered if this was 232 00:13:46,800 --> 00:13:50,120 Speaker 1: a real thing, was a one off doctrine, if it 233 00:13:50,160 --> 00:13:53,520 Speaker 1: would be used again. My own textbook had a section 234 00:13:53,640 --> 00:13:56,520 Speaker 1: a couple of years ago that question whether this doctrine 235 00:13:56,679 --> 00:13:59,720 Speaker 1: would exist into the future. Is it something that had legs? 236 00:14:00,120 --> 00:14:04,400 Speaker 1: It appeared again in King versus Burwell, the major challenge 237 00:14:04,440 --> 00:14:08,160 Speaker 1: to the Affordable Care Act in twenty fifteen. In that case, 238 00:14:08,559 --> 00:14:12,360 Speaker 1: as you may recall, Chief Justice Roberts decided the question 239 00:14:12,480 --> 00:14:15,760 Speaker 1: about whether the Affordable Care Act subsidies would apply to 240 00:14:15,840 --> 00:14:18,760 Speaker 1: all the different insurance markets across the nation as opposed 241 00:14:18,800 --> 00:14:21,680 Speaker 1: to as a subset, and it had this line that says, 242 00:14:22,240 --> 00:14:24,680 Speaker 1: this is not a question for the irs, it is 243 00:14:24,760 --> 00:14:28,840 Speaker 1: instead our role and implicit in that holding with this 244 00:14:28,920 --> 00:14:31,480 Speaker 1: idea that it was too big a question for the agency. 245 00:14:31,680 --> 00:14:35,840 Speaker 1: So many thought this doctrine continues to exist. All was 246 00:14:35,920 --> 00:14:39,560 Speaker 1: quiet once more until COVID hit. And in the context 247 00:14:39,600 --> 00:14:42,480 Speaker 1: of COVID, we saw a series of administrative actions in 248 00:14:42,520 --> 00:14:45,560 Speaker 1: the face of the pandemic that were muscular, and while 249 00:14:45,600 --> 00:14:48,080 Speaker 1: the Court displayed a lot of tolerance for those actions 250 00:14:48,080 --> 00:14:51,160 Speaker 1: to a point, starting in twenty twenty one, the course 251 00:14:51,160 --> 00:14:55,040 Speaker 1: started to resist some of those exercises of executive authority, 252 00:14:55,600 --> 00:14:58,400 Speaker 1: and in the Alabama Realtor's case, which was a case 253 00:14:58,440 --> 00:15:02,400 Speaker 1: about the use of an eviction moratorium to stop the 254 00:15:02,440 --> 00:15:05,520 Speaker 1: spread of disease, whether that kind of authority was within 255 00:15:05,600 --> 00:15:09,880 Speaker 1: the bounds of the CDC's authority. The Court reintroduced this 256 00:15:10,040 --> 00:15:13,040 Speaker 1: idea that some questions are just too big to be 257 00:15:13,080 --> 00:15:16,680 Speaker 1: delegated to an agency without being clear, And then in 258 00:15:16,680 --> 00:15:19,880 Speaker 1: a succession of cases that in COVID and thereafter, the 259 00:15:19,920 --> 00:15:23,240 Speaker 1: Court continued to use the major questions doctrine over and 260 00:15:23,320 --> 00:15:26,040 Speaker 1: over again, to the point that now it is clearly 261 00:15:26,200 --> 00:15:30,400 Speaker 1: entrenched and of great significance, including being used against the 262 00:15:30,400 --> 00:15:31,640 Speaker 1: President himself this year. 263 00:15:32,400 --> 00:15:37,240 Speaker 2: Is there a particular dissent in which Justice Jackson really 264 00:15:37,360 --> 00:15:43,760 Speaker 2: forcefully made the argument for consulting legislative history in statutory cases. 265 00:15:44,120 --> 00:15:46,280 Speaker 1: Yes, I think there are a couple really interesting ones. 266 00:15:46,440 --> 00:15:48,760 Speaker 1: Just looking at this term alone, there's so many to 267 00:15:48,840 --> 00:15:51,520 Speaker 1: choose from. Talk about a couple of them. One is 268 00:15:51,560 --> 00:15:54,760 Speaker 1: in the tariffs case, where she actually concurred in the 269 00:15:54,800 --> 00:15:58,600 Speaker 1: result reached by the majority to object to her quote 270 00:15:58,640 --> 00:16:04,200 Speaker 1: colleague speculating needlessly unquote about the statute's meaning when she said, quote, 271 00:16:04,240 --> 00:16:07,720 Speaker 1: the Court can and should consult the statutes, let uslative 272 00:16:07,800 --> 00:16:11,760 Speaker 1: history to determine what Congress actually intended the statute to do. 273 00:16:12,240 --> 00:16:16,640 Speaker 1: In another case Chefron versus Lacamine's Parish, she went in 274 00:16:16,680 --> 00:16:20,800 Speaker 1: and she said that the court cannot quote faithfully discharge 275 00:16:20,800 --> 00:16:26,000 Speaker 1: its duty unquote unless it quote considers all reliable evidence 276 00:16:26,200 --> 00:16:31,000 Speaker 1: of congressional intent, including statutory and legislative history. So she's 277 00:16:31,040 --> 00:16:33,720 Speaker 1: phrasing it as the court's democratic duty. And then in 278 00:16:34,080 --> 00:16:37,520 Speaker 1: at Best Credit Opportunities versus saviec Capital, she actually went 279 00:16:37,600 --> 00:16:41,440 Speaker 1: even further and she said, quote Congress, not the judiciary, 280 00:16:41,640 --> 00:16:44,800 Speaker 1: decides who may enforce the law, and for that reason 281 00:16:45,280 --> 00:16:51,800 Speaker 1: Court should consult all reliable indisha of congressional intent unquote. 282 00:16:51,840 --> 00:16:53,760 Speaker 1: And she went on to talk about the idea that 283 00:16:53,800 --> 00:16:58,240 Speaker 1: Congress's wishes were, in her words, unequivocally clear, and to 284 00:16:58,760 --> 00:17:02,800 Speaker 1: marvel at why it would be the case that countermingeritarian 285 00:17:02,880 --> 00:17:06,080 Speaker 1: court in a democratic system would not look across the 286 00:17:06,119 --> 00:17:10,120 Speaker 1: street to what Congress expressed when Congress, the drafter of statutes, 287 00:17:10,240 --> 00:17:12,800 Speaker 1: enacted a law that was before the Court that day. 288 00:17:13,080 --> 00:17:16,480 Speaker 1: And while that might not sound controversial, it's interesting that 289 00:17:16,560 --> 00:17:19,720 Speaker 1: it is controversial. Right. For a long time, that was 290 00:17:19,760 --> 00:17:22,280 Speaker 1: just the way courts interpreted statutes, looking at the text, 291 00:17:22,320 --> 00:17:25,000 Speaker 1: looking at congressional materials, look at everything in front of you. 292 00:17:25,160 --> 00:17:27,240 Speaker 1: People call that common law approach, so they call it 293 00:17:27,280 --> 00:17:31,679 Speaker 1: a collecticism. Jessice Scullia really changed that by trying to 294 00:17:31,720 --> 00:17:35,080 Speaker 1: create an arrower terrain. We can talk about whether that 295 00:17:35,160 --> 00:17:37,840 Speaker 1: terrain is actually a narrower Many people will come in 296 00:17:37,880 --> 00:17:42,080 Speaker 1: and say textualists introduced a whole lot of other things, dictionaries, presumptions, 297 00:17:42,320 --> 00:17:44,879 Speaker 1: it's not really a narrower terrain. And that's the subject 298 00:17:44,920 --> 00:17:48,440 Speaker 1: for another day. But for a while, let us lative 299 00:17:48,520 --> 00:17:51,880 Speaker 1: history used did go down significantly on the court. And 300 00:17:51,920 --> 00:17:54,000 Speaker 1: that's why it's notable when you see all of these 301 00:17:54,000 --> 00:17:56,920 Speaker 1: discents and these concurrences, because there's a moment like, wow, 302 00:17:57,400 --> 00:18:00,320 Speaker 1: someone is punching back after a long time. And this 303 00:18:00,400 --> 00:18:02,680 Speaker 1: is not to say that you don't get occasional opinion 304 00:18:02,840 --> 00:18:04,720 Speaker 1: still by Justice out of my yor who was very 305 00:18:04,720 --> 00:18:07,760 Speaker 1: active on this point for a long time, and Justice Kegan, 306 00:18:07,840 --> 00:18:11,080 Speaker 1: you know, and you do get occasional sense occasional uses 307 00:18:11,080 --> 00:18:14,000 Speaker 1: of letislative history. But this is really the first time 308 00:18:14,080 --> 00:18:17,120 Speaker 1: in quite a while in where someone has repeatedly been 309 00:18:17,240 --> 00:18:20,879 Speaker 1: having home this idea that it is the court's duty 310 00:18:21,280 --> 00:18:24,720 Speaker 1: to look across the street and consider what Congress was 311 00:18:24,760 --> 00:18:28,640 Speaker 1: actually trying to do using the materials that Congress put 312 00:18:28,680 --> 00:18:31,480 Speaker 1: out in connection with the statute to explain itself. 313 00:18:31,920 --> 00:18:34,320 Speaker 2: Do you think Justice Jackson is sort of trying to 314 00:18:34,359 --> 00:18:37,320 Speaker 2: shake things up with her descents? You know, does she 315 00:18:37,400 --> 00:18:41,160 Speaker 2: see herself as there to change things, because it's not 316 00:18:41,240 --> 00:18:45,520 Speaker 2: only with the legislative history, but she's also been really critical. 317 00:18:45,560 --> 00:18:48,040 Speaker 2: In fact, in a speech at Yale, right, she was 318 00:18:48,119 --> 00:18:52,800 Speaker 2: really critical of the Court's use of the emergency or 319 00:18:52,840 --> 00:18:55,640 Speaker 2: shadow dockets. So she's really sort of coming out punching. 320 00:18:56,040 --> 00:18:59,920 Speaker 1: I think she's certainly not shy, and she is certainly 321 00:19:00,600 --> 00:19:03,600 Speaker 1: taking the position that she is entitled to bring her 322 00:19:03,680 --> 00:19:06,600 Speaker 1: views to the table, and that she's entitled to bring 323 00:19:06,600 --> 00:19:10,040 Speaker 1: her perspective to the court. Her approach methodology is one, 324 00:19:10,520 --> 00:19:12,520 Speaker 1: her post to the shadow docket is another. But she's 325 00:19:12,560 --> 00:19:15,560 Speaker 1: not alone in critiquing the shadow docket. I think if 326 00:19:15,600 --> 00:19:18,960 Speaker 1: you look across the spectrum of justices, you can see 327 00:19:18,960 --> 00:19:20,680 Speaker 1: that when they all came to the court, they all 328 00:19:20,720 --> 00:19:23,120 Speaker 1: bring us their own perspectives to the table, and they 329 00:19:23,119 --> 00:19:27,240 Speaker 1: may be expressed in different ways. Justice Gorsich was a 330 00:19:27,359 --> 00:19:31,080 Speaker 1: very unique kind of textualist. He's a textualist who really 331 00:19:31,119 --> 00:19:34,840 Speaker 1: cares about looking at words sort of almost divorced from 332 00:19:34,840 --> 00:19:38,120 Speaker 1: their historical context. He likes to look at words sort 333 00:19:38,119 --> 00:19:41,240 Speaker 1: of in isolation. In Vostok, he looked at words in 334 00:19:41,280 --> 00:19:44,000 Speaker 1: the context of the sort of present day meaning. He's 335 00:19:44,040 --> 00:19:46,400 Speaker 1: focused a lot on what the regular person would think 336 00:19:46,400 --> 00:19:48,960 Speaker 1: of a statute. That's a contribution. It might not be 337 00:19:49,119 --> 00:19:52,120 Speaker 1: as obvious as Justice Jackson's, but just as scor Sitch 338 00:19:52,160 --> 00:19:55,760 Speaker 1: also came to the Court with an agenda about non delegation, 339 00:19:56,080 --> 00:19:58,879 Speaker 1: from which we've seen the end of Chevron and the 340 00:19:58,960 --> 00:20:01,159 Speaker 1: rise of the major questions. So I think it's not 341 00:20:01,320 --> 00:20:04,119 Speaker 1: that unusual to see a justice come to the Court 342 00:20:04,160 --> 00:20:08,200 Speaker 1: with new energy, wanting to put their stamp on things. 343 00:20:08,320 --> 00:20:11,320 Speaker 1: I've written elsewhere that Justice dooda Mayor in her first decade, 344 00:20:11,560 --> 00:20:16,400 Speaker 1: was a remarkably passionate defender of legislative history. She wrote 345 00:20:16,400 --> 00:20:19,160 Speaker 1: a series of opinions that, in case after case, actually 346 00:20:19,200 --> 00:20:23,480 Speaker 1: provoked separate opinions of Justice Scalia just to rebut her 347 00:20:23,560 --> 00:20:27,080 Speaker 1: views on legislative history. That's another very exciting time for 348 00:20:27,280 --> 00:20:30,320 Speaker 1: legislation professors. So I think it's fair to say that 349 00:20:30,480 --> 00:20:34,359 Speaker 1: Justice Jackson is not afraid to bring her perspective to 350 00:20:34,359 --> 00:20:37,040 Speaker 1: the Court, even though she is the much g endor justice, 351 00:20:37,119 --> 00:20:39,640 Speaker 1: but I don't think she's unique in history or even 352 00:20:39,680 --> 00:20:42,520 Speaker 1: among these justices on the court and bringing something new 353 00:20:42,560 --> 00:20:44,399 Speaker 1: to the table when she joins the group. 354 00:20:44,680 --> 00:20:47,959 Speaker 2: And finally, what's your take on the use of legislative history. 355 00:20:48,280 --> 00:20:51,920 Speaker 1: So, look, I've done many, many studies on this and 356 00:20:52,280 --> 00:20:56,000 Speaker 1: my general view and my studies are generally based in 357 00:20:56,040 --> 00:21:00,600 Speaker 1: Congress and in empirical studies of how congressional drafters think 358 00:21:00,640 --> 00:21:03,800 Speaker 1: about letislative history and how they use it. My basic 359 00:21:03,840 --> 00:21:07,040 Speaker 1: take on it is that some legislative history is reliable 360 00:21:07,359 --> 00:21:12,000 Speaker 1: and some legislative history is not reliable, and learning how 361 00:21:12,000 --> 00:21:15,720 Speaker 1: Congress works and looking at which legislative history documents are 362 00:21:15,960 --> 00:21:21,280 Speaker 1: consensus documents produce the critical moments of debate, those are 363 00:21:21,320 --> 00:21:26,040 Speaker 1: generally the most reliable legislative history documents. And of course 364 00:21:26,080 --> 00:21:28,880 Speaker 1: there's a lot of noise in there, and smart justices 365 00:21:28,960 --> 00:21:31,520 Speaker 1: have to be able to separate the week from the chaff. 366 00:21:31,960 --> 00:21:34,720 Speaker 1: But judges do that all the time with evidence, and 367 00:21:35,000 --> 00:21:38,280 Speaker 1: my view I think aligns with the views of those 368 00:21:38,320 --> 00:21:41,320 Speaker 1: who use it. Judges, like the late Chief Judge Castman, 369 00:21:41,440 --> 00:21:44,520 Speaker 1: was a large proponent of legislative history, that it has 370 00:21:44,520 --> 00:21:47,120 Speaker 1: its place along with other tools of Congress, but want 371 00:21:47,200 --> 00:21:50,480 Speaker 1: us to be skeptical and look at reliable legislative history 372 00:21:50,480 --> 00:21:53,080 Speaker 1: and make sure that the history you're using is representative 373 00:21:53,520 --> 00:21:57,440 Speaker 1: of a critical mass of legislators, not just one person's view, 374 00:21:58,040 --> 00:22:00,159 Speaker 1: and then it bears the indusiaty of reliability that can 375 00:22:00,160 --> 00:22:04,440 Speaker 1: shed light on a situation. Very often, there's an adage 376 00:22:04,520 --> 00:22:07,560 Speaker 1: that is directed at legislative history. The late judge leve 377 00:22:07,640 --> 00:22:09,600 Speaker 1: Andhal made a comment at one point that it's like 378 00:22:09,600 --> 00:22:12,560 Speaker 1: looking over a crowd and picking out your friends. I 379 00:22:12,560 --> 00:22:16,880 Speaker 1: think anyone who studies statutory interpretation can tell you that 380 00:22:17,000 --> 00:22:21,080 Speaker 1: virtually every tool of statutory interpretation, whether it's a dictionary 381 00:22:21,119 --> 00:22:24,639 Speaker 1: definition we all know the judges go dictionary shopping, or 382 00:22:25,160 --> 00:22:28,480 Speaker 1: the variety of presumptions that judges can choose from, or 383 00:22:28,520 --> 00:22:31,040 Speaker 1: the various parts of the US Code that judges often 384 00:22:31,040 --> 00:22:34,680 Speaker 1: look to to glean meaning for a particular statute under 385 00:22:34,680 --> 00:22:38,640 Speaker 1: consideration or legislative history. There are a lot of choices, 386 00:22:39,040 --> 00:22:40,960 Speaker 1: and being a good judge is looking at all of 387 00:22:41,000 --> 00:22:44,840 Speaker 1: those materials and determining which are relevant in this situation 388 00:22:44,960 --> 00:22:48,879 Speaker 1: and deploying them, but not necessarily excluding any one of 389 00:22:48,880 --> 00:22:52,399 Speaker 1: those materials considered judgment looks at all the evidence before 390 00:22:52,440 --> 00:22:55,560 Speaker 1: you and relies on what's most reliable, and I think 391 00:22:55,640 --> 00:22:58,760 Speaker 1: legislative history fits into that bucket. And I think that 392 00:22:58,760 --> 00:23:02,720 Speaker 1: that's the view of probably a majority of judges in 393 00:23:02,760 --> 00:23:04,720 Speaker 1: the federal courts. The last thing I'll say on this 394 00:23:04,920 --> 00:23:08,280 Speaker 1: is that Judge Richard Posner and I in twenty eighteen 395 00:23:09,200 --> 00:23:13,960 Speaker 1: did an empirical study. We were resurveyed several dozen appellate 396 00:23:14,040 --> 00:23:18,040 Speaker 1: federal appellate judges on many aspects of their interpretive approach, 397 00:23:18,320 --> 00:23:21,919 Speaker 1: and almost all of them took the position about letfit 398 00:23:22,000 --> 00:23:25,400 Speaker 1: of history that I've just rained. That they don't buy 399 00:23:25,480 --> 00:23:28,399 Speaker 1: into the idea that you would wholesale exclude it, but 400 00:23:28,440 --> 00:23:30,439 Speaker 1: that you would look at it along with all the 401 00:23:30,520 --> 00:23:33,520 Speaker 1: other tools. You look at and pick out the most 402 00:23:33,520 --> 00:23:37,160 Speaker 1: reliable evidence in any given situation to reach the right results. 403 00:23:37,160 --> 00:23:38,440 Speaker 1: And I think that's a smart approach. 404 00:23:38,920 --> 00:23:41,639 Speaker 2: It's such an interesting article. Thanks so much for joining 405 00:23:41,680 --> 00:23:44,439 Speaker 2: me to talk about it. Abby. That's Professor Abby Gluck 406 00:23:44,560 --> 00:23:46,840 Speaker 2: of Yale Law School. And that's it for this edition 407 00:23:46,880 --> 00:23:49,520 Speaker 2: of the Bloomberg Law Show. Remember you can always get 408 00:23:49,560 --> 00:23:52,679 Speaker 2: the latest legal news on our Bloomberg Law podcast. You 409 00:23:52,720 --> 00:23:56,800 Speaker 2: can find them on Apple Podcasts, Spotify, and at www 410 00:23:56,960 --> 00:24:01,240 Speaker 2: dot bloomberg dot com slash podcast, Slash Law, and remember 411 00:24:01,280 --> 00:24:04,240 Speaker 2: to tune into The Bloomberg Law Show every weeknight at 412 00:24:04,240 --> 00:24:07,720 Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're 413 00:24:07,800 --> 00:24:09,040 Speaker 2: listening to Bloomberg