an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On two occasions in the last month, I've been present when speakers discussing Justice Scalia's legacy have anchored their praise for Scalia's textualism by pointing to a famous West Publishing headnote from Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). The point of adducing the Overton Park headnote, for both speakers, was to say that in the pre-Scalia age, the Supreme Court cared relatively little -- perhaps comically little -- about enacted text. And in that light, Scalia's crusade for textualism was about the restoration of a bit of sanity.
It's surely true that Scalia contributed to raising the status of textualism, and in doing so he had more influence on the shape of legal discourse than most justices ever do. But the Overton Park meme is a misrepresentation, or at least a misundersatnding. So in the coming discussions of Scalia's legacy, audiences should be alert to the flaw in that meme, lest they accept a caricature as reality. Yes, Scalia changed legal discourse -- in my view, both for the better and for the worse. But perhaps American jurisprudence was not all anarchy and nonsense before Scalia came to town.
The Overton Park meme goes like this: In West's headnotes to the case, there is one -- Headnote 5 -- which reads as follows: "Where legislativehistory is ambiguous, court will look to the statutesthemselves to find the legislative intent." You see, the person relating the meme says, the Court took the view that in statutory cases courts should look first to legislative history, not to the enacted text, and consult the actual words of the enacted text only if the case cannot be settled on the basis of the legislative history. How backwards that seems! But strange as it seems, the meme continues, courts in the bad old days of the 1970s apparently thought this was a sensible procedure: look to legislative history first, and only read the actual statute if you really need to.
The world wasn't like that, even in 1971. As one should know from Overton Park itself, so long as one reads the Court's analysis rather than a headnote written by West Publishing, and so long as one reads with the aim of understanding what the Court was actually doing, rather than with the aim of taking something out of context and using it to mean something that makes midcentury judges seem silly.
In Overton Park, the Supreme Court addressed a decision by John Volpe, the Secretary of Transportation, to approve a plan to build a highway through a park in downtown Memphis. The petitioners claimed that the Secretary had failed to comply with the administrative-procedure requirements for approving the plan, including requirements imposed under the APA as well as requirements imposed under two federal statutes specifically dealing with the construction of highways.
In his opinion for the Court, Justice Marshall identified the statutes, quoted their actual language, and applied that language to various issues in the case. He did not wallow in legislative history or in other concerns about legislative intent that float free from enacted text.
After a fair amount of engagement with the words of the enacted statutes, Marshall came to one particular issue about the meaning of one piece of the enacted statutory language. Under relevant sections of the Department of Transportation Act and the Federal-Aid to Highway Act, Justice Marshall noted, the Secretary was to approve highways running through park land only if there were no "prudent" alternative routes. As Marshall explained, the Secretary argued for an expansive sense of "prudent." According to the Secretary, the prudence of an alternative route was a function of a broad all-things-considered calculation, one that would feature considerations of cost and perhaps community disruption. The Court rejected that interpretation, reasoning that a decision based on cost and community disruption would always favor building highways through parkland, which is already municipally owned and where people do not live, such that adopting the Secretary's interpretation would make the statutory requirement close to pointless. "[T]he very existence of the statutes," Marshall reasoned, indicated that preserving parkland was not to be simply sacrificed to considerations of cost.
After the quoted words about the very existence of the statutes, Marshall dropped a footnote. In the footnote, he wrote that the legislative history of the statutes did not clearly speak to the breadth of the Secretary's discretion to make decisions about the competing factors. The footnote then concluded with these words: "Because of this ambiguity it is clear that we must look primarily to the statutes themselves to find the legislative intent."
That's the language that gets picked up by the West Headnote and made into a meme signifying that the Supreme Court in 1971 considered legislative history more important than statutory text.
But of course the Court wasn't saying that. Nor had the Court tried to conduct an analysis of the case that began with an inquiry into legislative history and then turned, as a last resort, to the statutory text only when the legislative history didn't furnish an answer. What the Court's opinion actually did was look first at the statutes and reason about their language. When a dispute arose over the meaning of a term in the statute -- "prudent" -- the Court reasoned about what that word should sensibly be understood to mean in these particular statutes. And then, perhaps to meet some possible objection arguing that Congress did not intend the term to mean what the Court thought it meant, the Court in a footnote mentioned that the legislative history of the statutes does not resolve the issue, such that the issue must be resolved on the basis of the statutes without aid from legislative history. To be sure, there is something purposivist, and contestable, about Marshall's reasoning. But his interpretation was an answer to a question about the meaning of the enacted statutory language, and he mentioned legislative history only after confronting and reasoning about the statute directly.
In other words, nothing in Overton Park says "We look first to the legislative history, and if that won't settle the case we'll look at the statute." What the Court did in Overton Park was to read the statutes and interpret them and then in a footnote say that the legislative history was not to the contrary.
To some considerable extent, I happen to share Justice Scalia's skepticism about the use of legislative history in statutory interpretation. And of course I agree that he had an important impact in that area. But in taking the measure of that impact, it seems both inaccurate and uncharitable to portray the pre-Scalia judiciary as possessed of a kind of disregard for enacted text that would make those judges seem crazy and alien and foolish. They too took statutory text seriously, albeit in ways that sometimes differed in important respects from the way that Justice Scalia later advocated.
So I hope my recent experiences are anomalous and the the Overton Park meme (which I recognize is not new) will be given a deserved repose. Or at least that it will be challenged when offered. Posted
by Richard Primus [link]