This post originally appeared on The Legal Intelligencer Blog.
U.S. Supreme Court Justice Antonin Scalia's antipathy toward the use of legislative history as a tool for interpreting a statute is well known and much debated. Good arguments can be made for both sides of this debate.
As Scalia explained in his dissenting opinion in Koons Buick Pontiac GMC Inc. v. Nigh, "the court's use of legislative history ... lends itself to a kind of ventriloquism. The Congressional Record or committee reports are used to make words appear to come from Congress's mouth which were spoken or written by others (individual Members of Congress, congressional aides, or even enterprising lobbyists)." Former Justice John Paul Stevens, speaking for the opposite view in Koons, argued, "It is always appropriate to consider all available evidence of Congress' true intent when interpreting its work product."
A recent opinion by Scalia reveals an interesting quirk in his die-hard opposition to consideration of legislative history in interpreting a statute. In Bruesewitz v. Wyeth LLC, the court had to determine whether a federal statute barred state law design-defect claims against vaccine manufacturers. Scalia's opinion for a 6-2 majority did not rely on legislative history expressly, but the dissent by Justice Sonia Sotomayor did, and Scalia responded to this reliance by commenting, "Even those of us who believe legislative history is a legitimate tool of statutory interpretation have no need to resort to it."
Yet, while eschewing reliance on legislative history, Scalia's majority opinion cited no fewer than nine journal articles, books or agency reports to explain the history of vaccines and vaccine-related litigation that led to enactment of the National Childhood Vaccine Injury Act (NCVIA) of 1986. Of course, these secondary authorities are not part of the act, and their words do not "come from Congress's mouth," as Scalia put it in Koons.
But Scalia had no trouble invoking them to explain such background facts as the pre-act regulation of vaccines and compensation for vaccine-related injuries; the increase in tort litigation related to concerns with the diphtheria, tetanus and pertussis (DTP) vaccine and the resulting destabilization of the DTP vaccine market; and a decline in the DTP vaccination rates and a concomitant concern by public health officials over a potential outbreak of previously controlled diseases. After invoking the numerous secondary authorities in support of these contentions, Scalia explained, "To stabilize the vaccine market and facilitate compensation, Congress enacted the NCVIA in 1986."
It is possible that Scalia relied on these secondary sources solely for background information, to enlighten the reader or clarify the context of the court's decision, but this does not appear to be the case. Rather, as Scalia's segue from the background to the discussion of the NCVIA demonstrates, the background was included to explain that the purpose of the NCVIA was to address the destabilization of the vaccine market and the difficulty in obtaining compensation for vaccine-related injuries.
This purpose, expressed not in a provision of the statute, but rather in a number of secondary sources, then informed the court's ultimate determination -- ostensibly made on the basis of the statute's text and structure, and the structure of vaccine regulation generally -- that state law design-defect claims are pre-empted by the statute.
It is commonplace, of course, for judges to rely on secondary authorities in their opinions. What makes Scalia's extensive use of such authorities in his Bruesewitz opinion so striking is his oft-expressed aversion to another type of secondary authority -- legislative history. It would seem that, so long as the latter category is given its proper weight, i.e., as persuasive, non-dispositive secondary authority, it should be considered equally with the other categories of secondary authority that Scalia relied on in Bruesewitz.
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