"The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger...

James J. Brudney and Corey Ditslear, "The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras," Judicature 89 (January-February 2006): 220-29

Here a law professor and a political scientist examine the sharp decline in reliance on legislative

history in the majority opinions of the U.S. Supreme Court on workplace law in the Burger and Rehnquist Courts (1969-2005). The authors examine not only this overall decline but also individual justices' use of legislative history. Perhaps not surprisingly, given Justice Scalia's outspoken position against use of legislative history, they find that "four of the five most conservative members of the Rehnquist Court are at best reluctant users of legislative history," while liberal Justices Brennan and Marshall "regard legislative history with special favor" (p. 226). Indeed, the authors suggest that Justice Scalia's influence may help explain the decline in the Court's overall use of legislative history. Yet it is also discovered that there is little difference in reliance on legislative history between cases with conservative and liberal outcomes, and it is perhaps surprising that when legislative history is used, by a conservative or a liberal, it is likely to move the Court "away from the pro-employee purposes of the statutes themselves" (p. 227, italics in original).