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Justice Jackson Starts Statutory Interpretation Revolution · Bloomberg Law

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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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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
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Speaker 2: Supreme Court, making her the justice least often in the majority.
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Speaker 2: But Jackson did lead the Court in the number of descents,
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Speaker 2: writing ten, and in some of those descents, Jackson may
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Speaker 2: be trying to start a sort of statutory interpretation revolution.
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Speaker 2: My guest is Abby Gluck, a professor at Yale Law School.
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Speaker 2: She's written a piece in Scotis Blog entitled Justice Jackson
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Speaker 2: reignites the interpretation wars, adding to textualisms emerging cracks. Abby,
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Speaker 2: did you see a thread running through Jackson's descent, something
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Speaker 2: unifying them, a line running through them?
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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
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Speaker 1: watching in particular are the ones in cases involving statutes,
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Speaker 1: and there has definitely been a pretty clear and consistent
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Speaker 1: line across her descents and statutory cases in which Justice
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Speaker 1: Jackson seems to be trying to convince her colleagues to
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Speaker 1: pay more attention to congress and congressional intent. In case
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Speaker 1: after case. Sometimes she's dissenting, sometimes she's concurring and saying,
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Speaker 1: I'm going along with the judgment. But I have to
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Speaker 1: pause and ask, why didn't we just ask what Congress intended?
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Speaker 1: Why didn't we look at a committee report? Why didn't
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Speaker 1: we consult the legislative record? And I do think it's
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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
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Speaker 1: deferential to the other branches, particularly Congress. We've already moved
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Speaker 1: away from administrative difference to a large extent, but part
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Speaker 1: of it is an effort to sort of get at
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Speaker 1: the democratic legitimacy of the court.
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Speaker 2: The next question is, really, you know, how legislative history
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Speaker 2: fits into a textualist analysis. I think, but before that,
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Speaker 2: tell us about textualism on the court and how it
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Speaker 2: became the dominant method of analysis, so different from when
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Speaker 2: the late Justice Antonin Scalia was an advocate for it.
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Speaker 1: Yeah, this is a fascinating story of evolution and revolution.
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Speaker 1: You know, for a very long time, until the late
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Speaker 1: nineteen eighties, the Supreme Court, like many other courts across
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Speaker 1: the world, was a common law eclectic court. The court
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Speaker 1: would look at a variety of materials. In every statutory case,
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Speaker 1: they would look at the text, they would look at
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Speaker 1: the congressional record, they would look to congressional intent, and
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Speaker 1: they would look to all the evidence that was around
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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
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Speaker 1: both the majority and the descent, and the descent was
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Speaker 1: by Chief Justice Renquist, who was not Chief Justice yet
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Speaker 1: at the time were extremely legislative story heavy. That opinion
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Speaker 1: led to the view of some that the Court had
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Speaker 1: gone too far. Afield had stray too far from the
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Speaker 1: statutory text and was taking liberties with interpretation, and it
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Speaker 1: gave rise to a movement known as textualism that was
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Speaker 1: foundational to the Reagan era Justice Department and spearheaded by
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Speaker 1: well known academics to turn judges like Justice Scalia and
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Speaker 1: Judge Frank Easterbrook, who still sits on the Seventh Circuit,
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Speaker 1: and Texualism began as an outlier. It began as a
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Speaker 1: theory that advanced an idea that courts should only look
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Speaker 1: to statutory texts, maybe dictionaries, maybe there are other sections
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Speaker 1: in a statute, but they should not be looking at
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Speaker 1: legislative materials that were not actually passed by Congress. It
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Speaker 1: was a much narrower set of materials. Jessice Scalia was
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Speaker 1: a very persuasive advocate and very persuasive judge, and over
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Speaker 1: time descents turned into majorities judges who were at law
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Speaker 1: students when texualism came of age, lawyers and judges and
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Speaker 1: justices and academics, and over a twenty year period, with
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Speaker 1: many raging debates, majorities and descents arguing over interpreted methodology,
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Speaker 1: you would often see justices like Briar and Stevens and
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Speaker 1: Suitor pushing back against textualism and saying a democratically legitimate
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Speaker 1: court should be looking to congressional materials, should be thinking
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Speaker 1: about what Congress was actually trying to do. But over
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Speaker 1: time textualism became dominant. Then something interesting happened. Even as
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Speaker 1: textualism became dominant, it sort of entered a second generation.
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Speaker 1: The next generation of justices, including justices like Amy Cony
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Speaker 1: Barrett and Neil Gorsitch Gret Kavanaugh, came on the court
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Speaker 1: and started advancing their own versions of textualism, and they
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Speaker 1: haven't always agreed with one another. One of the best
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Speaker 1: examples is the case Boss Doc twenty twenty case involving
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Speaker 1: whether Title seven's civil rights protections applied to sexual orientation
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Speaker 1: and discrimination. And that case saw three different opinions from
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Speaker 1: three different textualists on the Court arguing over what textualism
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Speaker 1: is and how it should be applied, and who's the
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Speaker 1: real textualist in the room and who's just a faker. Eventually,
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Speaker 1: all of that is swirling around when Justice Katanji Brown
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Speaker 1: Jackson arrives on the scene and you know, as I've
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Speaker 1: written elsewhere, kind of similarly to the entry of Justice
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Speaker 1: Soda Mayor on the scene when she first became a justice,
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Speaker 1: Justice Shackson came in and said, you know, I'm not
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Speaker 1: necessarily accepting this dominant methodology. I'm bringing with me my
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Speaker 1: approach from the d C Circuit, which did look to
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Speaker 1: text but also looks to purpose and let us out
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Speaker 1: of history and congressional intent. And she has brought that
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Speaker 1: approach in case after case, this charm in a way
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Speaker 1: that is really starting to make waves with the.
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Speaker 2: Other textulis on the court. Is there any place in
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Speaker 2: their analysis for legislative history.
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Speaker 1: So it's pretty interesting if you look across the court,
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Speaker 1: there are textualists, and there are textualists. So Justice Alito,
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Speaker 1: when he was a judge on the Third Circle, was
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Speaker 1: known to be fond of legislative history, and as a
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Speaker 1: justice on the Supreme Court, he does occasionally look to
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Speaker 1: legislative history, including in that boss Stock opinion that I
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Speaker 1: just mentioned. There are other judges and justices who are
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Speaker 1: proclaimed textualists but look at legislative history every once in
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Speaker 1: a while, or do it in a more discreet way.
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Speaker 1: So one interesting phenomenon that I've written about is we're
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Speaker 1: increasingly seeing justices who associate with textualism citing the court's
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Speaker 1: precedence from a prior era for the propositions about congressional intent.
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Speaker 1: So the court might say something like, you know, an
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Speaker 1: X versus Why, we held that the purpose of this
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Speaker 1: statute was to advance education, as a hypothetical example, but
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Speaker 1: in X versus Why, the Court used legislative history to
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Speaker 1: reach that result. So we are seeing what I've called
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Speaker 1: elsewhere kind of a laundering of legislative history through the
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Speaker 1: court's previous precedents in the pretextualist era. I think that
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Speaker 1: goes to the point that it's really hard to interpret
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Speaker 1: statutes without giving some consideration to what Congress was trying
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Speaker 1: to do. And I think you've got some textualist judges
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Speaker 1: who are caught between recognizing that and recognizing the importance
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Speaker 1: of thinking about congressional purpose and the object of statutes
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Speaker 1: and trying to be faithful to a methodology. It's absolutely
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Speaker 1: the case that every once in a while you see
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Speaker 1: Justices like Kavanaugh and Chief Justice Roberts referencing legislative history
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Speaker 1: in their opinion. That's not a one hundred percent exclusionary rule,
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Speaker 1: but more often than not, and much more often than not,
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Speaker 1: they're not using legislative history on the face of the opinion.
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Speaker 1: And one thing that Justice Jackson was getting at this
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Speaker 1: term was why, you know, why not look at some
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Speaker 1: extra materials to buttress the point that the Court has reached.
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Speaker 1: Why not say, this is the democratically elected body that
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Speaker 1: passed this statute. We've reached a particular conclusion based on
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Speaker 1: the text of the statute. Let's look at letislative history
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Speaker 1: and back it up. And in fact, in the nineteen
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Speaker 1: seventies and nineteen eighties, that was at actually a frequent
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Speaker 1: approach of the court. They would look at the text,
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Speaker 1: and they would look at letislative history to kind of
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Speaker 1: check themselves to make sure they got it right, and
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Speaker 1: recognition of the democratic bona fidees of Congress, certainly vis
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Speaker 1: A VI the Court.
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Speaker 2: You've written that you're seeing other cracks in textualism's armor.
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Speaker 2: Is that what you mean by it?
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Speaker 1: I think there's a lot going on with textualism now.
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Speaker 1: I think it's been a really fascinating term for law professors.
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Speaker 1: I think a couple of different things are happening in
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Speaker 1: textualism that are not about legislative history. There is definitely
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Speaker 1: something going on with legislative history in the sense of
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Speaker 1: Justice Jackson trying to stir the pot and trying to
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Speaker 1: say effectively, this battles not over yet, right, There's still
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Speaker 1: more thinking to do about whether we really want to
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Speaker 1: exclude these letislative history materials. But you're also seeing fights
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Speaker 1: among textualists about what it means to be a textualist.
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Speaker 1: So in the boss Stack case that I mentioned earlier,
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Speaker 1: which was the case about whether Title seven's protections apply
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Speaker 1: to sexual orientation discrimination, you saw three textists arguing over
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Speaker 1: what is the appropriate timeframe when you're looking at texts,
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Speaker 1: Are you thinking about the moment the text was enacted,
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Speaker 1: what the Congress at the time would have thought, or
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Speaker 1: you thinking about what the text means today. There are
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Speaker 1: those kinds of cracks. This chairman a very high profile case,
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Speaker 1: Learning Resources, which was the case that involved the challenge
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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
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Speaker 1: those opinions, the justices were debating whether one of their
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Speaker 1: favorite canons, the major Questions rule, which is a presumption
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Speaker 1: that Congress doesn't delegate big questions to agencies without being
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Speaker 1: clear whether that rule should apply only after finding that
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Speaker 1: the text is ambiguous. And across decades, there have been
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Speaker 1: numerous presumptions, whether it's major questions or pro federalism canons,
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Speaker 1: or the rule of lenity, which construes statutes favorably to
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Speaker 1: our criminal defendants, in which the court has assumed that
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Speaker 1: ambiguity was a trigger to open the door to all
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Speaker 1: of these extra textual presumptions. And over the past couple
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Speaker 1: of years we've seen some justices saying, hey, maybe these
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Speaker 1: presumptions are important enough that we're going to apply them
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Speaker 1: even without an ambiguity finding. That's justice Gorse's's approach to
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Speaker 1: the major questions doctrine. Justice Barrett has a problem with
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Speaker 1: that approach. She called it, quote a judicial flex unquote,
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Speaker 1: pretty interesting, flavorful terminology, and so you're starting to see
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Speaker 1: debates on that front. In addition to debates about when,
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Speaker 1: let us later fishes should be used or how it
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Speaker 1: should be used, there's also an emerging debate about what
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Speaker 1: the reference point of textualism should be, not just whether
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Speaker 1: it's the words as used today versus the words as
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Speaker 1: used when the statute was enacted, but is the question
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Speaker 1: what did Congress mean when it wrote the words? Or
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Speaker 1: is the question what the ordinary person remain? And again
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Speaker 1: the question is which ordinary person highly educated, ordinary person,
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Speaker 1: a lawyer, a person of today, a person of yesterday.
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Speaker 1: These are debates that are percolating. So just when one
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Speaker 1: thought that the statutory interpretation wars were over, lots of
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Speaker 1: really interesting questions are starting to arise again. And I
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Speaker 1: think that does boil down to this notion that textualism
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Speaker 1: isn't just one thing, and it's not as though there
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Speaker 1: was one decisive battle and it's been one. It's that
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Speaker 1: it has become a dominant methodology A lot of people,
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Speaker 1: myself included, many of my students included, grew up in
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Speaker 1: this methodology, and perhaps it's not surprising to see mature
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Speaker 1: lawyers who grew up in the textualist era starting to
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Speaker 1: differentiate amongst themselves about how it should be applied and
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Speaker 1: starting to debate what third generation textualism should look like.
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Speaker 2: Coming up next, I'll continue this conversation with Yeh Law
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Speaker 2: School professor Abby Gluck. Is Justice Jackson shaking things up?
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Speaker 2: In other ways? This is Bloomberg. Justice Katanji Brown Jackson
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Speaker 2: joined the Court in twenty twenty two, but she's already
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Speaker 2: making a mark with her descents. She led the court
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Speaker 2: and the number of descents this year, with some protesting
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Speaker 2: the majority's refusal to consult legislative history in statutory cases.
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Speaker 2: Is that adding to the emerging cracks in textualism. I've
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Speaker 2: been talking to Yale Law School professor Abbi Gluck. Abby,
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Speaker 2: you were talking about the Major Questions doctrine. Tell us
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Speaker 2: more about it.
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Speaker 1: So the major Questions action most often is traced back
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Speaker 1: to a nineteen ninety four opinion by Justice Scalia called MCI,
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Speaker 1: and in that opinion, Justice Scalia was interpreting the word modify,
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Speaker 1: and rather the word modify in a statute could be
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Speaker 1: construed to give the agency the ability not just to
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Speaker 1: modify a requirement, but to eliminate it. And Justice Scalia
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Speaker 1: in that opinion said that we would presume that Congress
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Speaker 1: would not delegate so big of authority without being clear.
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Speaker 1: That was sort of left to lie for a while.
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Speaker 1: And then fast forward six years later, in two thousand,
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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
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Speaker 1: big administrative move and a controversial one, and Justice O'Connor's
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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
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Speaker 1: that they could not exercise that authority. And she again
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Speaker 1: invoked that same sentence that Jessice Scalia had put out
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Speaker 1: in MCI, this idea that we would presume that Congress
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Speaker 1: wouldn't delegate so big of a question to an agency
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Speaker 1: without being clear. After that, experts wondered if this was
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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
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Speaker 1: a couple of years ago that question whether this doctrine
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Speaker 1: would exist into the future. Is it something that had legs?
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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,
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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
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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.
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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
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Speaker 1: idea that some questions are just too big to be
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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
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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.
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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.
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Speaker 1: Yes, I think there are a couple really interesting ones.
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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
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Speaker 1: colleague speculating needlessly unquote about the statute's meaning when she said, quote,
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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.
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Speaker 1: In another case Chefron versus Lacamine's Parish, she went in
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Speaker 1: and she said that the court cannot quote faithfully discharge
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Speaker 1: its duty unquote unless it quote considers all reliable evidence
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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,
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Speaker 1: decides who may enforce the law, and for that reason
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Speaker 1: Court should consult all reliable indisha of congressional intent unquote.
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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
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Speaker 1: court in a democratic system would not look across the
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Speaker 1: street to what Congress expressed when Congress, the drafter of statutes,
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Speaker 1: enacted a law that was before the Court that day.
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Speaker 1: And while that might not sound controversial, it's interesting that
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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.
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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
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Speaker 1: active on this point for a long time, and Justice Kegan,
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Speaker 1: you know, and you do get occasional sense occasional uses
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Speaker 1: of letislative history. But this is really the first time
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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
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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.
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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
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Speaker 2: see herself as there to change things, because it's not
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Speaker 2: only with the legislative history, but she's also been really critical.
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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.
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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.
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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
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Speaker 1: among these justices on the court and bringing something new
20:42
Speaker 1: to the table when she joins the group.
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Speaker 2: And finally, what's your take on the use of legislative history.
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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
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