Judicial History

Yale Law Journal

Volumn 108, Issue 6, 1999, Pages 1311-1353

  Vermeule, Adrian ^a  

^a NONE

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EID: 0042627695     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797328     Document Type: Article

References (191)

1. Justices and judges accumulate two types of papers. "Working papers" are collections of judicial records generated in the course of official business, such as draft opinions, legal memoranda, and so forth. "Private papers" contain personal writings, journals, letters to family and friends, and other documents related to life outside of the Court. See ALEXANDRA K. WIGDOR, THE PERSONAL PAPERS OF SUPREME COURT JUSTICES: A DESCRIPTIVE GUIDE 3 (1986). Here, the term "judicial history" will be used to denote only the subset of working papers that is circulated among or accessible to all the members of a court, thereby including draft opinions and legal memoranda from judges to the whole court, but excluding, for example, memoranda to the judge from law clerks. "Judicial history" is suggested by analogy to the term "legislative history," which denotes documents generated within legislatures during the process of statutory enactment and legislative business generally, but does not cover private materials that congressmen keep in their office files. The legal rules governing judicial-history materials are simple: Unlike official legislative history and presidential records, which are (in large part) government property subject to statutory restrictions, judicial papers are the property of the judge and may be disposed of as the judge sees fit. Compare 44 U.S.C. §§ 2118-2207 (1991) (regulating congressional and presidential records), with Public Papers of Supreme Court Justices: Assuring Preservation and Access: Hearing Before the Subcomm. on Regulation and Gov't Info. of the Comm. on Governmental Affairs, 103d Cong. 17 (1993) [hereinafter Hearing] (statement of Sen. Lieberman) (noting that judicial papers are the private property of individual judges).
2. The controversy attendant upon the opening of Justice Thurgood Marshall's papers has brought wide attention to that collection. See Linda Greenhouse, Justices Guard Mystique; Anger in High Court over Marshall Papers Is Fueled by More than Pomp and Privacy, N.Y. TIMES, May 27, 1993, at A1. But the Marshall Papers are only a small fraction of the whole corpus of judicial materials. See WIGDOR, supra note 1, at 32-34 (identifying, as of 1986, 29 large collections of Justices' papers, 12 medium-sized collections, and 28 small collections). There is no central depository for these papers. Many collections are located at the Library of Congress in Washington, D.C. The following Justices have established partially or wholly unrestricted collections at the Library of Congress: Harry Blackmun, Louis D. Brandeis, Warren Burger (with papers at The College of William & Mary as well), Harold H. Burton, Salmon P. Chase, David Davis (also at the Chicago Historical Society), William Rufus Day, William O. Douglas, Gabriel Duvall, Oliver Ellsworth, Felix Frankfurter, Melville W. Fuller, John Marshall Harlan, Oliver Wendell Holmes, Robert H. Jackson, John Jay, Horace H. Lurton, Thurgood Marshall, John McLean, William H. Moody, Rufus W. Peckham, Harlan Fiske Stone, Joseph Story, Noah Haynes Swayne, William Howard Taft, and Earl Warren. The Library of Congress does not necessarily have a complete collection for any of these Justices; for example, the Library's collections of papers from Justices Brandeis and Holmes are small, while Harvard Law School has a large share of their papers and Louisville School of Law has all of Brandeis's non-judicial materials. Most collections of judicial-history materials are eventually opened to the public under the terms of their donations, but collections of living Justices are in many cases restricted during their lives and for a period of years thereafter. The Justices who have established restricted collections at the Library of Congress are Hugo L. Black, William J. Brennan, William O. Douglas, Robert H. Jackson, Samuel Freeman Miller, Sandra Day O'Connor, Morrison Waite, and Byron R. White. Justice White has said there will be no access during his life and for 10 years after his death, but he has reserved the right to change his mind. Only some of Justice Douglas's papers are restricted and those can be accessed by obtaining permission from his estate. The papers of Justices Black, Jackson, Miller, and Waite are simply listed as "restricted or classified." To obtain access to the Brennan Papers one must request a form and submit it to the executors of his estate, who generally grant access for six-month blocks to those with a scholarly purpose. Justice O'Connor will review requests personally but has noted that she is unlikely to grant them. Her papers will be made available to scholars after her death, but no access will be given until all the Justices involved in the cases covered have retired. In addition to the collections at the Library of Congress, there are significant collections at Harvard Law School and other academic institutions. Justice Tom Clark's papers are at Texas; Justice Abe Fortas's papers are at Yale; Justice Frank Murphy's papers are at Michigan; Justice Lewis Powell's papers are at Washington & Lee; Justice Stanley Reed's papers are at Kentucky; Justice Potter Stewart's papers are at Yale; and Chief Justice Fred Vinson's papers are at Kentucky.
3. For some historical uses, see, for example, RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN v. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 683-85 (1976), which draws upon internal documents, such as a conference memorandum by Justice Frankfurter, to sketch the background of Brown v. Board of Education, 347 U.S. 483 (1954); JAMES F. SIMON, THE CENTER HOLDS: THE POWER STRUGGLE INSIDE THE REHNQUIST COURT 62-67 (1995), which uses draft opinions by Justices White, Kennedy, and Brennan to analyze Patterson v. McLean Credit Union, 485 U.S. 617 (1988); and Michael Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213 (1991), which uses draft opinions and conference notes to describe the development of equal protection doctrine. The biographical use of judicial history began with ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW (1956), which draws on Chief Justice Stone's working papers, and it is now standard. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE (1994) 287-343 (including an extensive discussion of pre-conference memoranda circulated among judges on Second Circuit panels); see also infra notes 123-126 (citing scholarly sources).
4. For some historical uses, see, for example, RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN v. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 683-85 (1976), which draws upon internal documents, such as a conference memorandum by Justice Frankfurter, to sketch the background of Brown v. Board of Education, 347 U.S. 483 (1954); JAMES F. SIMON, THE CENTER HOLDS: THE POWER STRUGGLE INSIDE THE REHNQUIST COURT 62-67 (1995), which uses draft opinions by Justices White, Kennedy, and Brennan to analyze Patterson v. McLean Credit Union, 485 U.S. 617 (1988); and Michael Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213 (1991), which uses draft opinions and conference notes to describe the development of equal protection doctrine. The biographical use of judicial history began with ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW (1956), which draws on Chief Justice Stone's working papers, and it is now standard. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE (1994) 287-343 (including an extensive discussion of pre-conference memoranda circulated among judges on Second Circuit panels); see also infra notes 123-126 (citing scholarly sources).
5. For some historical uses, see, for example, RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN v. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 683-85 (1976), which draws upon internal documents, such as a conference memorandum by Justice Frankfurter, to sketch the background of Brown v. Board of Education, 347 U.S. 483 (1954); JAMES F. SIMON, THE CENTER HOLDS: THE POWER STRUGGLE INSIDE THE REHNQUIST COURT 62-67 (1995), which uses draft opinions by Justices White, Kennedy, and Brennan to analyze Patterson v. McLean Credit Union, 485 U.S. 617 (1988); and Michael Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213 (1991), which uses draft opinions and conference notes to describe the development of equal protection doctrine. The biographical use of judicial history began with ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW (1956), which draws on Chief Justice Stone's working papers, and it is now standard. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE (1994) 287-343 (including an extensive discussion of pre-conference memoranda circulated among judges on Second Circuit panels); see also infra notes 123-126 (citing scholarly sources).
6. For some historical uses, see, for example, RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN v. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 683-85 (1976), which draws upon internal documents, such as a conference memorandum by Justice Frankfurter, to sketch the background of Brown v. Board of Education, 347 U.S. 483 (1954); JAMES F. SIMON, THE CENTER HOLDS: THE POWER STRUGGLE INSIDE THE REHNQUIST COURT 62-67 (1995), which uses draft opinions by Justices White, Kennedy, and Brennan to analyze Patterson v. McLean Credit Union, 485 U.S. 617 (1988); and Michael Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213 (1991), which uses draft opinions and conference notes to describe the development of equal protection doctrine. The biographical use of judicial history began with ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW (1956), which draws on Chief Justice Stone's working papers, and it is now standard. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE (1994) 287-343 (including an extensive discussion of pre-conference memoranda circulated among judges on Second Circuit panels); see also infra notes 123-126 (citing scholarly sources).
7. For some historical uses, see, for example, RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN v. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 683-85 (1976), which draws upon internal documents, such as a conference memorandum by Justice Frankfurter, to sketch the background of Brown v. Board of Education, 347 U.S. 483 (1954); JAMES F. SIMON, THE CENTER HOLDS: THE POWER STRUGGLE INSIDE THE REHNQUIST COURT 62-67 (1995), which uses draft opinions by Justices White, Kennedy, and Brennan to analyze Patterson v. McLean Credit Union, 485 U.S. 617 (1988); and Michael Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213 (1991), which uses draft opinions and conference notes to describe the development of equal protection doctrine. The biographical use of judicial history began with ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW (1956), which draws on Chief Justice Stone's working papers, and it is now standard. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE (1994) 287-343 (including an extensive discussion of pre-conference memoranda circulated among judges on Second Circuit panels); see also infra notes 123-126 (citing scholarly sources).
8. See Daniel Klaidman, Gold Mine or Land Mine?, Marshall Papers Could Alter High-Court Litigation Strategy, CONN. L. TRIB., June 7, 1993, at 12 ("Many Washington law firms have already sent teams of researchers to the Library of Congress' Reading Room to pore through the more than 173,000 documents [in Thurgood Marshall's collection of internal Court papers]."); A.C. Pritchard, United States v. O'Hagan: Agency Law and Justice Powell's Legacy of the Law of Insider Trading, 78 B.U. L. REV. 13, 16 n.11 (1998) (noting that the author consulted the Marshall Papers to develop a litigation position in a matter before the Supreme Court).
9. See Daniel Klaidman, Gold Mine or Land Mine?, Marshall Papers Could Alter High- Court Litigation Strategy, CONN. L. TRIB., June 7, 1993, at 12 ("Many Washington law firms have already sent teams of researchers to the Library of Congress' Reading Room to pore through the more than 173,000 documents [in Thurgood Marshall's collection of internal Court papers]."); A.C. Pritchard, United States v. O'Hagan: Agency Law and Justice Powell's Legacy of the Law of Insider Trading, 78 B.U. L. REV. 13, 16 n.11 (1998) (noting that the author consulted the Marshall Papers to develop a litigation position in a matter before the Supreme Court).
10. In this Essay, I shall generally confine the discussion to the possible use of judicial history by federal courts to interpret decisions announced by, or rules promulgated by, other federal courts - specifically in two possible situations: (1) the use of judicial history by the Supreme Court to interpret its own prior opinions; and (2) the use of judicial history by lower federal courts to interpret the opinions of the Supreme Court. Possible extensions of the discussion to state courts, foreign jurisdictions, and other settings must await another day.
11. Judicially-promulgated rules fall into two categories: (1) the rules of procedure and evidence that the Supreme Court promulgates under the Rules Enabling Act, 28 U.S.C. §§ 2071-2074 (1994); and (2) rules that federal courts promulgate to govern their operations, such as the Supreme Court Rules. Subsequent references to "rules" refer to the former category; the latter for the most part lack general significance.
12. Mark V. Tushnet, The Supreme Court and Race Discrimination, 1967-1991: The View from the Marshall Papers, 36 WM. & MARY L. REV. 473, 473 (1995) (emphasis omitted); see also Bruce Fein, An Abuse of Discretion, A.B.A. J., Sept. 1993, at 48 ("[Justice Thurgood Marshall's] papers are irrelevant to the authoritative pronouncements of the Supreme Court.").
13. Mark V. Tushnet, The Supreme Court and Race Discrimination, 1967-1991: The View from the Marshall Papers, 36 WM. & MARY L. REV. 473, 473 (1995) (emphasis omitted); see also Bruce Fein, An Abuse of Discretion, A.B.A. J., Sept. 1993, at 48 ("[Justice Thurgood Marshall's] papers are irrelevant to the authoritative pronouncements of the Supreme Court.").
14. Whether officials of a particular institution may be asked to testify about the official history of their decisions is a different question altogether. Here too the rules present interesting asymmetries. Under the Speech and Debate Clause, U.S. CONST. art. I, § 6, and its state analogues, legislators may generally not be compelled to testify about their official acts. In many jurisdictions they may not even do so voluntarily. See Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 STAN. L. REV. 1833, 1890 n.195 (1998) (collecting federal and state sources). Judges may not testify either. See Fayerweather v. Ritch, 195 U.S. 276, 306-07 (1904) (holding that the meaning of a judicial order could not be proved by introducing the testimony of the judge who wrote the order); cf. United States v. Morgan, 313 U.S. 409, 422 (1941) (citing Fayerweather to support the holding that the Secretary of Agriculture could not be called to testify regarding his official decisions). Executive officials subordinate to the President, however, may be compelled to testify in unusual circumstances. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (holding that a trial court may require administrative officials to testify in the absence of formal findings when such findings are required to issue a regulation).
15. Recent examples of these uses are as follows. For originalism, see Printz v. United States, 117 S. Ct. 2365, 2372-79 (1997), which consults The Federalist Nos. 15, 27, 28, 33, 36, 39, 44, 45, 51, 70 to adjudicate a commandeering challenge to a federal statute. For legislative history, see Almendarez-Torres v. United States, 118 S. Ct. 1219, 1226 (1998), which consults the legislative history of a criminal statute to uphold its constitutionality as a sentencing factor. For travaux, see Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996), which states: "Because a treaty ratified by the United States is not only the law of this land, see U.S. CONST. art. II, § 2, but also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history (travaux preparatoires) and the post-ratification understanding of the contracting parties."
16. See, e.g., Vermeule, supra note 8, at 1885-96 (arguing that judges should not resort to legislative history in statutory interpretation).
17. The term "exclusion" is used here only as convenient shorthand for a long-winded description of the status of internal judicial materials: Litigants rarely - if ever-present them to courts, and courts have rarely - if ever - considered them. There are a handful of possible counterexamples, but none are squarely on point. The famous "Correspondence of the Justices," in which the Court wrote President Washington an official letter that refused Washington's request for an advisory opinion, has been invoked as authority in several subsequent opinions despite its extra-judicial character. See, e.g., Muskrat v. United States, 219 U.S. 346, 354 (1911). In Muskrat, the Court also relied upon a draft opinion prepared by Chief Justice Taney for Gordon v. United States, 117 U.S. (2 Wall.) 561 (1864). The draft had been written by Taney before his death but was not published in the United States Reports until 1885. See 117 U.S. 697 (1885) (printing the draft opinion and noting that "[i]t is the recollection of the surviving members of the court, that this paper was carefully considered by the members of the court in reaching the conclusion reported in 2 Wall. 561"). Finally, a court of appeals judge has discussed internal judicial correspondence, but only because the court's internal procedure itself became legally relevant in the unusual circumstances of the case. See Thompson v. Calderon, 120 F.3d 1045, 1067-68 & n.1 (9th Cir. 1997) (en banc) (Kozinski, J., dissenting) (discussing internal correspondence to demonstrate that court's procedures for en banc review had not malfunctioned), rev'd, 523 U.S. 538 (1998).
18. 460 U.S. 711 (1983).
19. See Tushnet, supra note 7, at 473 n.1.
20. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987) ("Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.") (quoting Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 392-93 (1980) (Stewart, J., dissenting)); Sinclair Ref. v. Atkinson, 370 U.S. 195, 209-10 (1962) (refusing to read a statute to duplicate a proposal rejected by the conference committee).
21. See United States v. Estate of Romani, 118 S. Ct. 1478, 1488-89 (1998) (Scalia, J., concurring in part and in the judgment) (arguing that the rejected-proposal doctrine circumvents constitutionally specified procedures for congressional lawmaking and imposes an onerous burden of legislative history research).
22. The courts have indeed applied something like the rejected-proposal doctrine when interpreting judicially-promulgated rules. See Whalen v. Ford Motor Credit, 684 F.2d 272, 275-77 (4th Cir. 1982) (en banc) (interpreting Rule 63 of the Federal Rules of Civil Procedure by examining a transcript of a meeting of the judicially-appointed Advisory Committee that drafted the rules; noting that at the relevant meeting the Committee considered, but rejected, a proposed amendment to the rule).
23. See Daniel A. Farber & Philip P. Frickey, Practical Reason and the First Amendment, 34 UCLA L. REV. 1615, 1642-45 (1987) (arguing that constitutional doctrines may derive from multiple rationales).
24. Frederick Schauer anticipated the judicial history puzzle by addressing the question of whether draft opinions supply any insights about the Supreme Court's rulemaking function. See Frederick Schauer, Opinions as Rules, 53 U. CHI. L. REV. 682 (1986) (reviewing BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE WARREN COURT (1985)). Schauer found that "[t]he [Warren Court] drafts [published in Schwartz's book] do not turn substantially on disputes about the specificity of the language to be used, on the kinds of examples, if any, to be included in an opinion, or on whether the holding of the Court should be encapsulated in some rule-like test." Id. at 686-87. None of this is necessarily inconsistent with the point that judicial history could in some cases provide interpretive aid. It may be, as Schauer notes, that Schwartz's materials were not sufficiently comprehensive for the purpose. See id. at 687. And the subsequently released Marshall Papers provide a far richer store of judicial history than that to which Schwarte had access.
25. Frederick Schauer anticipated the judicial history puzzle by addressing the question of whether draft opinions supply any insights about the Supreme Court's rulemaking function. See Frederick Schauer, Opinions as Rules, 53 U. CHI. L. REV. 682 (1986) (reviewing BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE WARREN COURT (1985)). Schauer found that "[t]he [Warren Court] drafts [published in Schwartz's book] do not turn substantially on disputes about the specificity of the language to be used, on the kinds of examples, if any, to be included in an opinion, or on whether the holding of the Court should be encapsulated in some rule-like test." Id. at 686-87. None of this is necessarily inconsistent with the point that judicial history could in some cases provide interpretive aid. It may be, as Schauer notes, that Schwartz's materials were not sufficiently comprehensive for the purpose. See id. at 687. And the subsequently released Marshall Papers provide a far richer store of judicial history than that to which Schwarte had access.
26. 348 U.S. 310 (1955).
27. See id. at 320-21.
28. See Joel K. Goldstein, The Life and Times of Wilburn Boat: A Critical Guide (Part I), 28 J. MAR. L. & COM. 395 (1997) (drawing on the published opinion, internal conference notes, and internal correspondence to interpret the opinion). It should be noted, though, that Goldstein is ambivalent about his approach. See id. at 417 ("The Justices' papers, and the inferences and speculations they support, are interesting and instructive in understanding how the Court operated and decided the case. They should not, however, control judgments about Wilburn. . . . Ultimately, the decision must stand or fall on its merits, on the reasons given for it or which might sustain it.").
29. Id. at 435 (emphasis omitted).
30. Id. at 440.
31. See id. at 437 & n.228, 440. For another example of academic exploration of judicial history, see Christopher D. Cameron & Kevin R. Johnson, Death of a Salesman? Forum Shopping and Outcome Determination Under International Shoe, 28 U.C. DAVIS L. REV. 769, 809-15 (1995).
32. Both of these approaches are interpretive, not predictive. They aim not to forecast the likely behavior of the Court in a future case, but rather to understand the authoritative import of a previous judicial decision. On a predictive theory of adjudication, in which judges properly seek to avoid reversal by a higher court, the case for judicial resort to internal judicial materials would be overwhelming. Those materials would supply excellent, perhaps incomparable, information on which to base predictions about the Justices' future behavior. Cf. Michael C. Dorf, Prediction and the Rule of Law, 42 UCLA L. REV. 651, 693-94 (1995) (suggesting that in the context of Supreme Court stay motions, where a single Circuit Justice must predict how the full Court would vote on a certiorari petition, the Circuit Justice might legitimately consider "unpublished conference votes, or unrecorded statements" of another Justice (footnote omitted)).
33. This pair of terms has been used in the legislative-history literature as well. See, e.g., William N. Eskridge Jr. & John Ferejohn, Politics, Interpretation, and the Rule of Law, in NOMOS XXXVI: THE RULE OF LAW 265, 285 (1994).
34. See infra notes 33-34 and accompanying text.
35. See infra notes 35-37 and accompanying text.
36. See Lewis A. Kornhauser & Lawrence G. Sager, Unpacking the Court, 96 YALE L.J. 82, 103 n.29 (1986); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 CARDOZO L. REV. 43, 43-79 (1993).
37. See Lewis A. Kornhauser & Lawrence G. Sager, Unpacking the Court, 96 YALE L.J. 82, 103 n.29 (1986); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 CARDOZO L. REV. 43, 43-79 (1993).
38. See, e.g., United States v. American Trucking Ass'ns, 310 U.S. 534, 542 (1940) ("In the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress."); Church of the Holy Trinity v. United States, 143 U.S. 457, 464 (1892) (consulting internal legislative history to "throw[] light upon the intent of Congress").
39. This intuition probably has roots in some version of the declaratory theory of law, associated with Blackstone, which embodies "the strongly held and deeply felt belief that judges are bound by a body of fixed, overriding law, that they apply that law impersonally as well as impartially, that they exercise no individual choice and have no program of their own to advance." Paul J. Mishkin, The Supreme Court, 1964 Term - Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 HARV. L. REV. 56, 62 (1965). These jurisprudential waters are too deep to enter here. Suffice it to say that the use of judicial history as an interpretive source is in principle compatible with the declaratory theory of law. Even if one conceived of judges as the oracles of some preexisting body of law, one might turn to judicial history for interpretive assistance when the precise content of their oracular declarations was ambiguous or obscure. For discussion of the related argument that recourse to judicial history would undermine judicial "legitimacy," see infra note 108.
40. See, e.g., Libretti v. United States, 516 U.S. 29, 40 (1995) (inferring, from context and language, that in disputed precedent "[w]e intended only to suggest" a certain proposition); Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991) (vacating and remanding because "the record before us does not clearly indicate what the District Court intended by its disposition"); Sisson v. Ruby, 497 U.S. 358, 366-67 (1990) (stating that if a previous opinion had "intended" to establish a certain principle, the Court would have said so more clearly).
41. See Rules Enabling Act, 28 U.S.C. §§ 2071-2077 (1994).
42. See id. § 2072(b) ("All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.").
43. In addition to conventional interpretation and ex ante rulemaking under the Rules Enabling Act, the Court also engages in some amount of explicit lawmaking through case-by-case adjudication. This "federal common law" is sometimes rooted in an express constitutional or statutory delegation of lawmaking power, see, e.g., FED. R. EVID. 501 (authorizing federal courts to develop evidentiary privileges "in the light of reason and experience"), but sometimes derives simply from a loose reference to "issues of uniquely federal concern." Northwest Airlines v. Transport Workers Union, 451 U.S. 77, 95 (1981). See generally Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1248-50 (1996) (explaining the principal issues in the federal-common-law debate). The nature and legitimacy of federal common law are hotly controverted, but nothing in the judicial-history problem turns on these questions. To the extent that a lower court wished to understand a Supreme Court opinion, for example, intentionalist and contextualist uses of judicial history would remain plausible interpretive strategies whether that opinion was best classified as an example of interpretation or rather of federal common-lawmaking. Under either classification, judicial history might assist readers in understanding what exactly the opinion meant.
44. See Richard H. Fallon, Jr., The Supreme Court, 1996 Term - Foreword: Implementing the Constitution, 111 HARV. L. REV. 56, 56 (1997) ("Among the most important functions of the Supreme Court are to craft and apply constitutional doctrine - a term that I use to embrace not only the holdings of the cases, but also the analytical frameworks and tests that the Court's cases establish." (footnote omitted)).
45. See Frederick Schauer, Opinions as Rules, 62 U. CHI. L. REV. 1455, 1455 (1995) ("It is a routine charge against contemporary judicial opinions that they read more like statutes than like opinions of a court. According to the typical formulation of the charge, the modern judicial opinion, especially the modern Supreme Court constitutional opinion, is excessively divided into sections and subsections [and] relies too heavily on three-part tests . . . ."). The statute-like character of the Court's opinions has probably become more pronounced of late, although there is no way to measure the trend. See RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 177, 369 (1996) (describing "new emphasis on 'ruledness'" in federal adjudication. exemplified by "the Supreme Court's emphatic modern efforts to lay down increasingly precise rules of constitutional law" and noting "the increasing tendency of appellate courts, especially the Supreme Court, to lay down rules rather than standards").
46. See Frederick Schauer, Opinions as Rules, 62 U. CHI. L. REV. 1455, 1455 (1995) ("It is a routine charge against contemporary judicial opinions that they read more like statutes than like opinions of a court. According to the typical formulation of the charge, the modern judicial opinion, especially the modern Supreme Court constitutional opinion, is excessively divided into sections and subsections [and] relies too heavily on three-part tests . . . ."). The statute-like character of the Court's opinions has probably become more pronounced of late, although there is no way to measure the trend. See RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 177, 369 (1996) (describing "new emphasis on 'ruledness'" in federal adjudication. exemplified by "the Supreme Court's emphatic modern efforts to lay down increasingly precise rules of constitutional law" and noting "the increasing tendency of appellate courts, especially the Supreme Court, to lay down rules rather than standards").
47. For a good overview of the conundrums of intentionalism, see ANDREI MARMOR, INTERPRETATION AND LEGAL THEORY 159-72 (1992).
48. See, e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 68 (1994) ("Intent is elusive for a natural person, fictive for a collective body.").
49. See Marks v. United States, 430 U.S. 188, 193-94 (1977) (citing Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976)). There are also more exotic situations in which the vote of one Justice dictates the judgment, and that Justice's opinion therefore explains the holding of the case. For example, see Oregon v. Mitchell, 400 U.S. 112 (1970), in which eight Justices split four-to-four on two issues, and Justice Black's opinion, joined by no other Justice, controlled both issues. See generally Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1 (1993) (collecting and analyzing unusual voting situations).
50. A familiar example is Justice Powell's concurrence in Regents of the University of California v. Bakke, 438 U.S. 265, 269-324 (1978), upon which a mountain of analysis has slowly risen. For debate over the significance of Powell's concurrence, compare Hopwood v. Texas, 78 F.3d 932, 945 (5th Cir. 1996), which holds that the concurrence is not controlling, with Wessmann v. Gittens, 160 F.3d 790, 798 (1st Cir. 1998), which holds that the concurrence is controlling.
51. Cf. Jeremy Waldron, Legislators' Intentions and Unintentional Legislation, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY (Andrei Marmor ed., 1995) 329, 331-32 (noting that" single-author" legislation avoids the most vexing problems of intentionalism). Even in such contexts, however, it is still fruitful to study the problems of intentionalism that apply to single minds. See MARMOR, supra note 38, at 159-65. And, of course, the problem of collective intention retains its force in the many judicial settings where the background rules make collective voting necessary for the issuance of an authoritative opinion. See, e.g., Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802 (1982) (drawing upon voting theory to argue that the Court is incapable of rendering consistent decisions over time).
52. Cf. Jeremy Waldron, Legislators' Intentions and Unintentional Legislation, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY (Andrei Marmor ed., 1995) 329, 331-32 (noting that" single-author" legislation avoids the most vexing problems of intentionalism). Even in such contexts, however, it is still fruitful to study the problems of intentionalism that apply to single minds. See MARMOR, supra note 38, at 159-65. And, of course, the problem of collective intention retains its force in the many judicial settings where the background rules make collective voting necessary for the issuance of an authoritative opinion. See, e.g., Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802 (1982) (drawing upon voting theory to argue that the Court is incapable of rendering consistent decisions over time).
53. See Eileen A. Scallen, Interpreting the Federal Rules of Evidence: The Use and Abuse of the Advisory Committee Notes, 28 LOY. L.A. L. REV. 1283, 1300 (1995) (rejecting possible analogies between judicial history and the advisory committee notes that courts use to interpret federal procedural rules on the ground that "while the Court's preliminary memos are never intended for public consumption, the Advisory Committee Notes are expressly intended for that purpose").
54. For a complex analysis of legislation and interpretive expectations, see Joseph Raz, Intention in Interpretation, in THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM 249 (Robert P. George ed., 1996).
55. 143 U.S. 457 (1892).
56. See, e.g., Aldridge v. Williams, 44 U.S. (3 How.) 9, 23-24 (1845) (declaring internal legislative history inadmissible).
57. See Holy Trinity, 143 U.S. at 464-65.
58. See Hans W. Baade, Time and Meaning: Notes on the Intertemporal Law of Statutory Construction and Constitutional Interpretation, 43 AM. J. COMP. L. 319, 321-22 (1995) (noting that Holy Trinity applied a new interpretive rule retroactively despite a direct conflict with clear statutory language).
59. Cf. William N. Eskridge, Jr., Should the Supreme Court Read The Federalist but Not Statutory Legislative History?, 66 GEO. WASH. L. REV. 1301, 1320-21 (1998) (arguing that originalist materials are more reliable than legislative history, because the former were prepared without the expectation that judges would systematically use them as an interpretive source).
60. WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 211 (1994).
61. Oliver Wendell Holmes, Jr., The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 414-19 (1899).
62. See, e.g., Boston Sand & Gravel v. United States, 278 U.S. 41, 48 (1928) (Holmes, J.) ("It is said that when the meaning of language is plain we are not to resort to evidence in order to raise doubts. That is rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists."). Justice Thomas appears to be edging towards a similar position. Although he adheres to the principle that the object of statutory interpretation is to ascertain textual meaning, rather than legislative intent, he has recently begun to rely upon legislative history to illuminate the textual meaning. See National Credit Union Admin, v. First Nat'l Bank & Trust, 118 S. Ct. 927, 935 & n.6 (1998) (Thomas, J.) (relying upon both the statute's "express terms" and legislative history).
63. See, e.g., ROBERT A. KATZMANN, COURTS AND CONGRESS 62-64 (1997) (surveying the broad support for a "contextualist" defense of legislative history); Stephen G. Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 863 (1992) ("No one claims that legislative history is a statute, or even that, in any strong sense, it is 'law.' Rather, legislative history is helpful in trying to understand the meaning of the words that do make up the statute or the 'law.'"); Eskridge & Ferejohn, supra note 26, at 285 ("[S]tatements in [legislative history] may provide evidence as to common understandings of people interacting in the area in question. Such statements . . . may be employed by courts to resolve ambiguities in the statute. Such a justification might be termed 'contextualist.'").
64. See, e.g., ROBERT A. KATZMANN, COURTS AND CONGRESS 62-64 (1997) (surveying the broad support for a "contextualist" defense of legislative history); Stephen G. Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 863 (1992) ("No one claims that legislative history is a statute, or even that, in any strong sense, it is 'law.' Rather, legislative history is helpful in trying to understand the meaning of the words that do make up the statute or the 'law.'"); Eskridge & Ferejohn, supra note 26, at 285 ("[S]tatements in [legislative history] may provide evidence as to common understandings of people interacting in the area in question. Such statements . . . may be employed by courts to resolve ambiguities in the statute. Such a justification might be termed 'contextualist.'").
65. 28 U.S.C. § 2071 (1994).
66. See Earl M. Maltz, Statutory Interpretation and Legislative Power: The Case for a Modified Intentionalist Approach, 63 TUL. L. REV. 1, 26 (1988) ("Committee reports are in many ways analogous to majority opinions in case law."). It is tempting to buttress this claim by pointing to an important procedural difference between statutes and judicial opinions: Any judge may express his views on the official record in the public reports, while a legislator may only place his views into the official record by garnering a majority coalition of his colleagues to vote those views into law. But the distinction does not work. An appellate judge, like a legislator, may express his views with binding legal effect only if he obtains agreement on those views from a majority of the relevant decisionmaking body, in his case the court. Any judge may speak at will by means of a concurring or dissenting opinion, but then again any legislator may speak at will by inserting a statement into legislative history.
67. Cf. Breyer, supra note 53, at 862 ("If the [legislative] history is vague, or seriously conflicting, do not use it. No one claims that history is always useful; only that it sometimes helps." (internal quotation omitted)).
68. See, e.g., Chicago, Milwaukee, St. Paul & Pac, R.R. v. Acme Fast Freight, 336 U.S. 465, 472-75 (1949) (preferring the uncontradicted statement of the ranking minority member to conflicting explanations in a committee report); FEC v. Rose, 806 F.2d 1081, 1089-90 (D.C. Cir. 1986) (dismissing as "uninformed ipse dixit" statements in the House report that sponsors contradicted in the House and Senate debates).
69. See Vermeule, supra note 8, at 1863-77.
70. See Agostini v. Felton, 117 S. Ct. 1997, 2017 (1997) (stating that lower courts are bound by directly controlling Supreme Court precedent); Rodriguez de Quijas v. Shearson/Am. Express, 490 U.S. 477, 484 (1989) (same); see also POSNER, supra note 37, at 367 ("Supreme Court decisions bind the courts of appeals in a way in which they do not bind the Court itself . . . ."); Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817 (1994) (describing and justifying lower courts' obligation to obey a superior court's precedents). Most interpretation of Supreme Court precedents occurs in the lower courts rather than in the Court itself, because lower court opinions far outnumber the opinions of the Supreme Court. In 1995, for example, the federal courts of appeals published 5360 opinions. See William M. Landes et al., Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 J. LEGAL STUD. 271, 283 n.30 (1998). In the same year, the Supreme Court issued 75 signed opinions out of 90 cases argued. See William H. Rehnquist, The 1997 Year-End Report on the Federal Judiciary 5-6 (visited Dec. 21, 1998) 〈http://www.uscouns.gov/cj97.htm〉.
71. See Agostini v. Felton, 117 S. Ct. 1997, 2017 (1997) (stating that lower courts are bound by directly controlling Supreme Court precedent); Rodriguez de Quijas v. Shearson/Am. Express, 490 U.S. 477, 484 (1989) (same); see also POSNER, supra note 37, at 367 ("Supreme Court decisions bind the courts of appeals in a way in which they do not bind the Court itself . . . ."); Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817 (1994) (describing and justifying lower courts' obligation to obey a superior court's precedents). Most interpretation of Supreme Court precedents occurs in the lower courts rather than in the Court itself, because lower court opinions far outnumber the opinions of the Supreme Court. In 1995, for example, the federal courts of appeals published 5360 opinions. See William M. Landes et al., Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 J. LEGAL STUD. 271, 283 n.30 (1998). In the same year, the Supreme Court issued 75 signed opinions out of 90 cases argued. See William H. Rehnquist, The 1997 Year-End Report on the Federal Judiciary 5-6 (visited Dec. 21, 1998) 〈http://www.uscouns.gov/cj97.htm〉.
72. See Agostini v. Felton, 117 S. Ct. 1997, 2017 (1997) (stating that lower courts are bound by directly controlling Supreme Court precedent); Rodriguez de Quijas v. Shearson/Am. Express, 490 U.S. 477, 484 (1989) (same); see also POSNER, supra note 37, at 367 ("Supreme Court decisions bind the courts of appeals in a way in which they do not bind the Court itself . . . ."); Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817 (1994) (describing and justifying lower courts' obligation to obey a superior court's precedents). Most interpretation of Supreme Court precedents occurs in the lower courts rather than in the Court itself, because lower court opinions far outnumber the opinions of the Supreme Court. In 1995, for example, the federal courts of appeals published 5360 opinions. See William M. Landes et al., Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 J. LEGAL STUD. 271, 283 n.30 (1998). In the same year, the Supreme Court issued 75 signed opinions out of 90 cases argued. See William H. Rehnquist, The 1997 Year-End Report on the Federal Judiciary 5-6 (visited Dec. 21, 1998) 〈http://www.uscouns.gov/cj97.htm〉.
73. Cf. Klaidman, supra note 4, at 12 ("Many lawyers say they would never cite the papers explicitly in a Supreme Court brief or oral argument, lest they incur the wrath of Justices who are angry about the papers' release. But the advisability of using the documents in the lower courts remains an open, intriguing question.").
74. See 28 U.S.C. § 2072(b) (1994) ("All laws in conflict with such rules [promulgated by the Court] shall be of no further force or effect after such rules have taken effect."); Mistretta v. United States, 488 U.S. 361, 391 (1989) ("[T]he rules of procedure bind judges and courts in the proper management of the cases before them . . . .").
75. See supra note 11.
76. See infra notes 64-80 and accompanying text. The Court has consulted similar materials-such as pleadings, motions, and trial court rulings - in order to determine whether an opaque state court opinion should be deemed to rest upon an independent and adequate state ground. See ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 144 (7th ed. 1993) (citing Staub v. City of Baxley, 355 U.S. 313, 318 (1958); First Nat'l Bank v. Anderson, 269 U.S. 341, 346 (1926)).
77. 28 U.S.C. §§ 2071-2074 (1994).
78. See id. § 2072(a)
79. See id. § 2073(a)(2); Thomas E. Baker, An Introduction to Federal Court Rulemaking Procedure, 22 TEX. TECH L. REV. 323 (1991) (providing an overview of the federal rulemaking process).
80. See 28 U.S.C. § 2074(a) (1994); Cheryl L. Haas, Note, Judicial Rulemaking: Criticisms and Cures for a System in Crisis, 70 N.Y.U. L. REV. 135, 136-37 (1995).
81. See infra notes 70-72 and accompanying text; see also Laurens Walker, Writings on the Margin of American Law: Committee Notes, Comments and Commentary, 29 GA. L. REV. 993, 997-1007 (1995) (surveying the judicial use of advisory committee notes).
82. The situation is slightly more complicated with respect to the current Federal Rules of Evidence in particular. Although the statutory rulemaking process is identical for procedural rules and evidence rules. Congress by special statute modified and affirmatively enacted the Court's promulgated version of the evidence rules, rather than permitting them to take effect by default; and Congress had the Advisory Committee Notes before it. The Advisory Committee Notes to the evidence rules, then, might be conceived as ordinary legislative history. Nothing in the following discussion, however, is affected by this complication.
83. 513 U.S. 150 (1995).
84. See. e.g., id. at 163 ("Nothing in the Advisory Committee's Notes suggests that it intended to alter the common-law premotive requirement."); id. at 160 ("The Notes disclose a purpose to adhere to the common law in the application of evidentiary principles . . . .").
85. Id. at 160.
86. Id. at 167-68 (Scalia, J., concurring in part and in the judgment) (citation omitted).
87. For discussion of the argument that the advisory committee notes, unlike internal memoranda, were created for public consumption, see supra notes 43-49.
88. 428 U.S. 579 (1976).
89. 317 U.S. 341 (1943).
90. See id. at 350-52.
91. See Cantor, 428 U.S. at 585.
92. See id. at 587-92.
93. Id. at 617-18 (Stewart, J., dissenting) (emphasis added and citations omitted).
94. See, e.g., ESKRIDGE, supra note 50, at 231 ("[T]here may be good reasons to prefer the fictions surrounding legislative history to those of the new textualism. At least legislative history is created within the legislative process and is subject to legislative reaction and correction."); James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Charter or Telling Response?. 93 MICH. L. REV. 1, 46 (1994) (arguing that unlike nonstatutory interpretive sources, "explanations offered in committee reports or in bill managers' statements at least derive from Congress's own policymaking authority").
95. See Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845) ("The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed.").
96. City of Georgetown, 8 Op. Att'y Gen. 546, 560 (1856).
97. These arguments are therefore not intended to explain the historical origins of the current exclusion of judicial history. Such an explanation would require a complex analysis of institutional and jurisprudential developments in American law that would exceed the scope of the present work.
98. Another attempted justification might state the following general principle: Official history may be used as an interpretive source only if the institution or official who generated the history placed it on the public record. On this view, legislative history would be admissible because it is published in the Congressional Record. Some other types of official history would be admissible as well (although perhaps not the notes of the constitutional convention, which Madison suppressed until his death, see James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 TEX. L. REV. 1, 24 (1986)). Judicial history, on the other hand, would not be admissible unless judges chose to publish it in the law reports. It is arguable that even by this "public record" test, judicial history should be admissible. It might be said that many Justices have placed their working papers on the public record. See supra note 2 (describing collections of Justices' papers at the Library of Congress and elsewhere). Why do the U.S. Reports count as the public record but the Library of Congress does not? Both are funded by the government. In addition, the judicial working papers themselves were generated by government officials in the course of their official duties. Granted, judicial working papers are not opened to the public contemporaneously with the opinion, but that is true of so-called "subsequent legislative history" as well. And some judicial history cannot be placed on the public record under any definition. A draft opinion, for example, is replaced by the official opinion in the reports in the same way that a draft bill is replaced by the enacted statute; it would be as unusual to publish a draft opinion in the U.S. Reports as it would be to publish a draft bill in the Statutes at Large. But the public-record test itself is flawed. If it assumes that a judge's failure to put judicial history on the record reflects an intention that the history not be used as an interpretive source, then it overlooks that legislators and executive officials place material on the public record partly out of constitutional or statutory compulsion. See infra Section II.C (discussing the Journal Clause, U.S. CONST, art. I, § 5, cl. 3, and the Freedom of Information Act, 5 U.S.C. §§ 551-557 (1994)). In any event it assumes - controversially - that an official's intentions about interpretation bind later interpreters. See supra notes 43-49 and accompanying text (questioning this assumption). If that is not the point, then the public-record test just reasserts the current state of legal practice by definitional fiat: Judicial history is not part of the public record because it is not an admissible source. But presumably, if everyone thought judicial history an admissible source, it would constitute pan of the public record and might be published in the same way legislative history is. The question is whether that state of affairs would prove beneficial, and definitions of the public record provide no guidance on that question.
99. Nor do statutory sources supply a clean prohibition of judicial history. Just as there is no general federal statute that regulates judicial resort to legislative history, there is no statute that addresses legal (or for that matter nonlegal) uses of judicial history.
100. See U.S. CONST, art. I, § 7, cl. 2-3 (specifying that a "Bill" may become a "Law" only by approval by both Houses of Congress and presentment to the President, followed by either presidential signature or a presidential veto and repassage by two-thirds majorities in both Houses).
101. See, e.g., Thompson v. Thompson, 484 U.S. 174, 192 (1987) (Scalia, J., concurring) (stating that legislative history is a "frail substitute[] for [a] bicameral vote upon the text of a law and its presentment to the President" (citing INS v. Chadha, 462 U.S. 919 (1983))).
102. See Bank One Chicago v. Midwest Bank & Trust, 116 S. Ct. 637, 645 (1996) (Scalia, J., concurring in part and in the judgment). See generally John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673 (1997) (providing a thorough exposition of the nondelegation argument for textualism).
103. David A. Strauss, Why Plain Meaning?, 72 NOTRE DAME L. REV. 1565, 1573 (1997).
104. See, e.g., Breyer, supra note 53, at 863 ("A judge cannot interpret the words of an ambiguous statute without looking beyond its words for the words have simply ceased to provide univocal guidance to decide the case at hand.").
105. See U.S. CONST, art. I, § 7, par. 2, cl. 1.
106. See id. at art. II, § 3.
107. See Walter Dellinger, Memorandum for Bernard N. Nussbaum Counsel to the President, 48 ARK. L. REV. 333, 339 (1995) ("In support of the view that signing statements can be used to create a species of legislative history, it can be argued that the President as a matter both of constitutional right and of political reality plays a critical role in the legislative process.").
108. See William D. Popkin, Judicial Use of Presidential Legislative History: A Critique, 66 IND. L.J. 699, 709 (1991) ("The President . . . is not a legislator and therefore cannot create authoritative legislative history."); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) ("The Constitution limits [the President's] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.").
109. See Clinton v. City of New York, 118 S. Ct. 2091 (1998) (holding that the exercise of presidential cancellation authority pursuant to the Line Item Veto Act violates the requirements for lawmaking set forth in U.S. CONST. art. I, § 7); Marc N. Garber & Kurt A. Wimmer, Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 HARV. J. ON LEGIS. 363, 376 (1987) ("[B]y reinterpreting those parts of congressionally enacted legislation of which he disapproves, the President exercises unconstitutional line-item veto power.").
110. See U.S. CONST. art. I. § 7 (specifying procedures for the enactment of valid federal statutes); id. at. art. I, § 8 (enumerating substantive grants of federal legislative power).
111. Id. at art. III, § 2.
112. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 5 (2d ed. 1986) ("[Article III] does not purport to tell the Court how to decide cases; it only specifies which kinds of case the Court shall have jurisdiction to deal with at all. Thus, in giving jurisdiction in [particular categories of] cases . . ., the clause is not read as prescribing the process of decision to be followed.").
113. Cf. id. at 1 ("Congress was created very nearly full blown by the Constitution itself. The vast possibilities of the presidency were relatively easy to perceive and soon, inevitably, materialized. But the institution of the judiciary needed to be summoned up out of the constitutional vapors . . . .").
114. U.S. CONST. art. III, §§ 1, 2 (vesting the "judicial Power of the United States" in particular federal courts and enumerating categories of "Cases" and "Controversies" to which that power shall extend).
115. See RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 162-63 (1996) (describing an increase in the number of unpublished opinions and judgment orders in the federal system).
116. W.H. Bryson, Virginia Law Reports and Records, 1776-1800, in 1 ESSAYS, CASE LAW IN THE MAKING: THE TECHNIQUES AND METHODS OF JUDICIAL RECORDS AND LAW REPORTS 99, 101 (Alain Wijffels ed., 1997).
117. See id. at 101. These practices had deep roots in colonial-era traditions surrounding the creation and dissemination of judicial records. Colonial judges took notes of the cases before them, and the resulting "bench books" became part of the record of the relevant courts. See Erwin C. Surrency, Law Reports in the United States, 25 AM. J. LEGAL HIST. 48, 52 (1981). Lawyers also developed judicial records; their notes of arguments and decisions were
118. 3-4 G. EDWARD WHITE, HISTORY OF THE SUPREME COURT OF THE UNITED STATES THE MARSHALL COURT AND CULTURAL CHANGE 1815-35, at 385 n.3 (1988) (citation omitted); we also Craig Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendancy, 83 MICH. L. REV. 1291, 1298 (noting that as of 1806 "the Court apparently failed, even in its most important cases, to reduce its opinions to writing" (footnote omitted)).
119. 3-4 G. EDWARD WHITE, HISTORY OF THE SUPREME COURT OF THE UNITED STATES THE MARSHALL COURT AND CULTURAL CHANGE 1815-35, at 385 n.3 (1988) (citation omitted); we also Craig Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendancy, 83 MICH. L. REV. 1291, 1298 (noting that as of 1806 "the Court apparently failed, even in its most important cases, to reduce its opinions to writing" (footnote omitted)).
120. WHITE, supra note 105, at 183 (quoting letter from Joseph Story to Richard Peters, esq., May 7, 1836, in 2 WILLIAM W. STORY, LIFE AND LETTERS OF JOSEPH STORY 231 (1851)).
121. Joyce, supra note 105, at 1321 & n.184.
122. I do not include any claim that resort to judicial history would damage the judiciary's "legitimacy." If the legitimacy claim means that resort to judicial history as a legal source would bring the judiciary into public disrepute by revealing the indecisiveness, compromise, and error that inevitably accompany judicial deliberation, then the claim overlooks two critical objections. First, the extensive modern use of judicial history for biographical and historical purposes has already brought about that evil, if it is one. The focus here, by contrast, is on the distinct and concrete harms that would flow from the use of judicial history as an interpretive source. See infra notes 127-128 and accompanying text. Second, the invocation of "legitimacy" in this debate is wholly indeterminate. Those who favor fully exposing the judicial process to public scrutiny argue plausibly that openness, not secrecy, is the precondition of judicial legitimacy. See, e.g., Arthur Selwyn Miller & D.S. Sastri, Secrecy and the Supreme Court: On the Need for Piercing the Red Velour Curtain, 22 BUFF. L. REV. 799, 823 (1973) ("We believe that in fact public esteem [for the Court] would rise if there were to be widespread dissemination of the intricacies and difficulties, the workload and the burdens of the nine Justices.").
123. See In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) ("The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege: it allows the government to withhold documents and other materials that would reveal 'advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966), aff'd, 384 F.2d 979 (D.C. Cir. 1967) (per curiam))).
124. U.S. CONST, art. I, § 5, cl. 3.
125. A troubling detail for this account is that the Journal Clause does not require that the public be permitted to attend congressional deliberations. In the period immediately following ratification, "the Senate chose to operate behind closed doors for several years despite repeated arguments that the blanket exclusion of the public was inconsistent with the principle of popular government on which the Constitution was based. Moreover, neither chamber interpreted the journal provision to require a verbatim transcript of its proceedings." DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS 10 (1997) (footnotes omitted). Yet it seems clear that the clause was originally understood to supply a guarantee of democratic accountability. See. e.g., JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 299 (Ronald D. Rotunda & John E. Nowak eds., 1987) (1833) ("The object of the whole clause is to ensure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents.").
126. A troubling detail for this account is that the Journal Clause does not require that the public be permitted to attend congressional deliberations. In the period immediately following ratification, "the Senate chose to operate behind closed doors for several years despite repeated arguments that the blanket exclusion of the public was inconsistent with the principle of popular government on which the Constitution was based. Moreover, neither chamber interpreted the journal provision to require a verbatim transcript of its proceedings." DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS 10 (1997) (footnotes omitted). Yet it seems clear that the clause was originally understood to supply a guarantee of democratic accountability. See. e.g., JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 299 (Ronald D. Rotunda & John E. Nowak eds., 1987) (1833) ("The object of the whole clause is to ensure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents.").
127. U.S. CONST. art. I, § 6, cl. 1.
128. See United States v. Johnson, 383 U.S. 169, 184-85 (1966).
129. U.S. CONST, art. II, § 3.
130. Id.at art. 1, § 9, cl. 7.
131. See, e.g., United States v. Nixon, 418 U.S. 683 (1974) (recognizing the President's interest in confidentiality of discussions with advisors, but holding that it was outweighed by the pressing need for full presentation of relevant evidence in a criminal case).
132. 5 U.S.C. §§ 551-557 (1994) (Freedom of Information Act & Government in the Sunshine Act). The Freedom of Information Act makes executive branch records presumptively available to the public; the Government in the Sunshine Act opens certain administrative proceedings to public attendance.
133. See U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial . . . ."); Waller v. Georgia, 467 U.S. 39, 44-47 (1984) (holding that criminal proceedings are presumed open unless the defendant's right to a fair trial is compromised or the government has a compelling interest in inhibiting the disclosure of sensitive information). The provision probably has less to do with the judiciary as such than it does with the particular gravity of criminal proceedings. Cf. Nixon, 418 U.S. at 713 (holding that a valid claim of executive privilege was outweighed by the need for evidence in a criminal proceeding); Viet D. Dinh, Book Review, 13 CONST. COMMENTARY 346, 355 n.15 (1996) ("[A] case [like Nixon] pits not Congress against the President, but an individual's rights against governmental interests, and thus raises different, perhaps more easily answered, questions.").
134. In this light, it is revealing that the statutes that open executive proceedings to public scrutiny make exceptions for agency deliberation in an adjudicative capacity. See 5 U.S.C. § 552b(c)(10) (1994) (exempting from disclosure information that concerns "a particular case of formal agency adjudication"); Renegotiation Bd. v. Grumman Aircraft Eng'g, 421 U.S. 168, 186 (1975) (holding that reports used in the deliberations of the Renegotiation Board were "precisely the kind of predecisional deliberative advice and recommendations . . . which must remain uninhibited and thus undisclosed"); Time, Inc. v. United States Postal Serv., 667 F.2d 329, 334 (2d Cir. 1981) ("The evident sense of Congress was that when a statute required an agency to act as would a court, its deliberations should be protected from disclosure as a court's would be.").
135. See Lewis F. Powell, Jr., What Really Goes on at the Supreme Court, 66 A.B.A. J. 721, 722 (1980).
136. See STORY, supra note 111, at 593 (arguing that without an independent federal judiciary "[p]ublic justice . . . will decree . . . what best suits the opinions of the day").
137. See Fein, supra note 7, at 48 ("Supreme Court confidentiality, at least for a decent interval, is vital to the unconstrained intramural debate that fathers longheaded decisions. It assures Justices that the process of intellectual trial and error before a final ruling will not be a source of embarrassment."); J. Woodford Howard, Jr., Comment on Secrecy and the Supreme Court. 22 BUFF. L. REV. 837, 838-40 (1973) (detailing various deliberative benefits of "decisional privacy"); Erwin N. Griswold, Book Review, 69 A.B.A. J. 1506, 1506 (1983) ("One wonders what effect this sort of presentation of [internal Court] documents, interviews and so on, so soon after the events, has on freedom of exchange, frankness, trust, common understanding, even bonhomie, among present and future Justices. . . . Sunshine can be carcinogenic as well as antiseptic."). For a general account of the benefits of deliberation to the Court as an institution, see Kornhauser & Sager, supra note 29. at 100-02.
138. See Fein, supra note 7, at 48 ("Supreme Court confidentiality, at least for a decent interval, is vital to the unconstrained intramural debate that fathers longheaded decisions. It assures Justices that the process of intellectual trial and error before a final ruling will not be a source of embarrassment."); J. Woodford Howard, Jr., Comment on Secrecy and the Supreme Court. 22 BUFF. L. REV. 837, 838-40 (1973) (detailing various deliberative benefits of "decisional privacy"); Erwin N. Griswold, Book Review, 69 A.B.A. J. 1506, 1506 (1983) ("One wonders what effect this sort of presentation of [internal Court] documents, interviews and so on, so soon after the events, has on freedom of exchange, frankness, trust, common understanding, even bonhomie, among present and future Justices. . . . Sunshine can be carcinogenic as well as antiseptic."). For a general account of the benefits of deliberation to the Court as an institution, see Kornhauser & Sager, supra note 29. at 100-02.
139. ALEXANDER M. BICKEL, THE UNPUBLISHED OPINIONS OF MR. JUSTICE BRANDEIS at ix (1957).
140. See, e.g., JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. (1994).
141. See, e.g., BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE BURGER COURT (1988); BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE REHNQUIST COURT (1996); BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE WARREN COURT (1985).
142. See, e.g., BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE BURGER COURT (1988); BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE REHNQUIST COURT (1996); BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE WARREN COURT (1985).
143. See, e.g., BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE BURGER COURT (1988); BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE REHNQUIST COURT (1996); BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE WARREN COURT (1985).
144. See, e.g., N. Bruce Duthu, The Thurgood Marshall Papers and the Quest for a Principled Theory of Tribal Sovereignty: Fueling the Fires of Tribal/State Conflict, 21 VT. L. REV. 47 (1996); Andrew C. Mergen & Sylvia F. Liu, A Misplaced Sensitivity: The Draft Opinions in Wyoming v. United States, 68 U. COLO. L. REV. 683 (1997); Tushnet, supra note 7 at 473.
145. See, e.g., N. Bruce Duthu, The Thurgood Marshall Papers and the Quest for a Principled Theory of Tribal Sovereignty: Fueling the Fires of Tribal/State Conflict, 21 VT. L. REV. 47 (1996); Andrew C. Mergen & Sylvia F. Liu, A Misplaced Sensitivity: The Draft Opinions in Wyoming v. United States, 68 U. COLO. L. REV. 683 (1997); Tushnet, supra note 7 at 473.
146. Of course, the consequence of this sort of argument might simply be that nonlegal uses of judicial history should be suppressed as well. But those uses lie partially outside the judiciary's collective institutional control. While the Court might announce by majority vote that judicial history may not be introduced to interpret an ambiguous opinion, it has thus far proved unable to prevent the publication of confidential material by former law clerks. See, e.g., EDWARD LAZARUS, CLOSED CHAMBERS: THE FIRST EYEWITNESS ACCOUNT OF THE EPIC STRUGGLES INSIDE THE SUPREME COURT (1998). Congress, however, could presumably prohibit such publication, and state bars could make it a breach of professional ethics.
147. See LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 37-42 (1997) (reviewing empirical literature showing that the desire to influence the content of legal policy is a powerful, although not exclusive, determinant of judicial behavior); JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 73 (1993) (arguing that Justices decide cases on the basis of substantive policy preferences). But cf. Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everyone Else Does). 3 SUP. CT. ECON. REV. 1, 18 (1993) (stating that the majority of judges "have no great interest in changing (or resisting change in) law or society").
148. See LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 37-42 (1997) (reviewing empirical literature showing that the desire to influence the content of legal policy is a powerful, although not exclusive, determinant of judicial behavior); JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 73 (1993) (arguing that Justices decide cases on the basis of substantive policy preferences). But cf. Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everyone Else Does). 3 SUP. CT. ECON. REV. 1, 18 (1993) (stating that the majority of judges "have no great interest in changing (or resisting change in) law or society").
149. See LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 37-42 (1997) (reviewing empirical literature showing that the desire to influence the content of legal policy is a powerful, although not exclusive, determinant of judicial behavior); JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 73 (1993) (arguing that Justices decide cases on the basis of substantive policy preferences). But cf. Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everyone Else Does). 3 SUP. CT. ECON. REV. 1, 18 (1993) (stating that the majority of judges "have no great interest in changing (or resisting change in) law or society").
150. See Manning, supra note 89, at 684-89 (detailing textualist claims that legislative history supplies unreliable evidence of legislative intent); Note, Why Learned Hand Would Never Consult Legislative History Today, 105 HARV. L. REV. 1005, 1015-21 (1992) (describing legislators' tactics for influencing the content of legislative history).
151. See Popkin, supra note 95, at 713-14 (describing "politically manipulative" signing statements).
152. See, e.g., Eskridge & Ferejohn, supra note 26, at 286 ("If speakers and listeners all know that words spoken in the legislative process are accorded weight by courts and agencies, then members have an incentive to ensure that the record reflects his or her interpretation of the statute and that misleading or extreme interpretations do not stand unchallenged."); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3, 26-28 (describing mechanisms by which legislators can police manipulation of legislative history by committee members and other delegates).
153. See generally Manning, supra note 89, at 718-19 (arguing that the delegation to legislative committees or sponsors of the power to make law through legislative history allows other legislators to avoid responsibility and institutionalizes permanent logrolling).
154. See Dennis J. Hutchinson, Judicial Biography: Amicus Curiae, 70 N.Y.U. L. REV. 723, 724 (1995) ("There are numerous instances of self-serving artifacts being created by judges more with an eye to future historians than to the pressure of the moment - Stone, Frankfurter, and Douglas are notorious examples."). For debate over a possible example of such behavior, compare Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620, 645-51 (1994), which suggests that Justice Felix Frankfurter may have fabricated an internal memorandum and ascribed it to Justice Owen J. Roberts, with Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994), which disputes Ariens's suggestion.
155. See Dennis J. Hutchinson, Judicial Biography: Amicus Curiae, 70 N.Y.U. L. REV. 723, 724 (1995) ("There are numerous instances of self-serving artifacts being created by judges more with an eye to future historians than to the pressure of the moment - Stone, Frankfurter, and Douglas are notorious examples."). For debate over a possible example of such behavior, compare Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620, 645-51 (1994), which suggests that Justice Felix Frankfurter may have fabricated an internal memorandum and ascribed it to Justice Owen J. Roberts, with Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994), which disputes Ariens's suggestion.
156. See Dennis J. Hutchinson, Judicial Biography: Amicus Curiae, 70 N.Y.U. L. REV. 723, 724 (1995) ("There are numerous instances of self-serving artifacts being created by judges more with an eye to future historians than to the pressure of the moment - Stone, Frankfurter, and Douglas are notorious examples."). For debate over a possible example of such behavior, compare Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620, 645-51 (1994), which suggests that Justice Felix Frankfurter may have fabricated an internal memorandum and ascribed it to Justice Owen J. Roberts, with Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994), which disputes Ariens's suggestion.
157. See JOSEPH RAZ, THE AUTHORITY OF LAW 214 (arguing that the rule of law requires, inter alia, that "[a]ll laws should be prospective, open, and clear . . . . The law must be open and adequately publicized. If it is to guide people they must be able to find out what it is" (emphasis omitted)).
158. See Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 17 (Amy Gutmann ed., 1997); Kenneth W. Starr, Observations About the Use of Legislative History, 1987 DUKE L.J. 371, 377 ("Resort to legislative history forces lawyers not only to study the statute, but also to wade through formidable mounds of materials at federal depositories."); Schwegmann Bros. v. Calvert Distillers, 341 U.S. 384, 396-97 (1951) (Jackson, J., concurring) (arguing that legislative history is inaccessible for many lawyers).
159. See Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 17 (Amy Gutmann ed., 1997); Kenneth W. Starr, Observations About the Use of Legislative History, 1987 DUKE L.J. 371, 377 ("Resort to legislative history forces lawyers not only to study the statute, but also to wade through formidable mounds of materials at federal depositories."); Schwegmann Bros. v. Calvert Distillers, 341 U.S. 384, 396-97 (1951) (Jackson, J., concurring) (arguing that legislative history is inaccessible for many lawyers).
160. See Hearing, supra note 1, at 19 (statement of E. Barrett Prettyman, Jr.) ("[Judicial-history information] provides an unfair advantage to those of us who live and work in Washington and have easy access to these papers, as opposed to someone in Montana or California who does not."). Before the development of publicly-financed court reporters, judicial decisions themselves were often inaccessible in just this way. See Joyce, supra note 105, at 1294-312 (describing problems of inaccuracy, omission, expense, and inaccessibility in the dissemination of early Supreme Court opinions). Resort to judicial history would thus threaten to undo the gains in accessibility, clarity, and uniformity that have accompanied the modern system of reporting decisions.
161. See supra notes 123, 125.
162. For restrictions on access to the papers of various Justices, see supra note 2.
163. 195 U.S. 276 (1904).
164. Id. at 306-07.
165. See Vermeule, supra note 8, at 1890 & nn.195-98 (describing the rule in most jurisdictions that legislators may not testify about legislative intent).
166. See id. (arguing that the exclusion of legislators' testimony supports a rule excluding legislative history); see also infra text accompanying note 161 (discussing implications of contextualism for rules that preclude legislators' testimony).
167. The closest analogy is the Presidential Records Act of 1978, 44 U.S.C. § 2201 (1994), which regulates official working papers of the President and his staff, and which would probably survive any separation-of-powers challenges. See Armstrong v. Executive Office of the President, 90 F.3d 553, 579 (D.C. Cir. 1996) (Tatel, J., dissenting) ("Presumably in recognition of Congress's authority to preserve documents of the United States Government, including the executive branch, the Government does not assert that the Presidential Records Act represents an unconstitutional intrusion upon the President's exercise of his constitutional duties."); cf. Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977) (upholding the Presidential Recordings and Materials Preservation Act, Pub. L. No. 93-526, 88 Stat. 1695 (1974), which applied only to the papers of former President Nixon, against a separation-of-powers challenge). But when in 1993 a Senate subcommittee held hearings on the legal status of the papers of Supreme Court Justices and invited the Justices to express their views. Chief Justice William Rehnquist wrote a letter in return that stated, on behalf of the whole Court, "[W]e have no hesitancy expressing the opinion that legislation [respecting the Justices' papers] . . . could raise difficult concerns respecting the appropriate separation that must be maintained between the legislative branch and this Court." Letter from Chief Justice William Rehnquist to Sen. Joseph I. Lieberman (June 7, 1993), reprinted in Hearing, supra note 1, at 71.
168. See Vermeule, supra note 8, at 1870-71 (describing arguments that judicial resort to legislative history imposes burdensome research costs and creates unequal access to the law).
169. See supra note 37 and accompanying text.
170. Cf. Easterbrook, supra note 42, at 808 ("Longer and more detailed opinions are a rational and desirable response by a Court that cannot significantly increase the number of cases it hears but wants to offer guidance on the increasing number of problems it must address."); Howard, supra note 122, at 841 ("However much seriatim opinions may appeal to the democratic spirit, effective leadership of a complex legal bureaucracy via case law hinges upon a clear voice from the top.").
171. See Schauer, supra note 37, at 1469-70 (suggesting that "if one of the functions of a judicial opinion is guiding lower courts and legally advised actors" then the goal is best achieved by writing opinions with statute-like precision).
172. Cf. Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 68 (1994) ("Rules differ from standards. Sometimes Congress specifies values or ends, things for the executive or judicial branches to achieve, but often it specifies means, creating loopholes but greater certainty. Using legislative history and an imputed 'spirit' to convert one approach into another dishonors the legislative choice as effectively as expressly refusing to follow the law." (emphasis omitted)).
173. See supra notes 87-100 and accompanying; text.
174. See Manning, supra note 89, at 707 (arguing that judicial resort to legislative history as an authoritative source disserves the structural objectives promoted by bicameralism and presentment).
175. Cf. Cass. R. Sunstein, Justice Scalia's Democratic Formalism, 107 YALE L.J. 529, 548 (1997) (book review) ("Whether it makes sense to use legislative history depends on such issues as the simple costs of using the history, the likelihood that it will increase rather than decrease errors, the availability of other more reliable sources of meaning, and the consequences for the legislature itself of using legislative history or not using it.").
176. See Schauer, supra note 37, at 1407.
177. See supra notes 75-80 and accompanying text.
178. Cf. Larry M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 WIS. L. REV. 235, 251-62 (arguing that textualism in statutory interpretation fails because human linguistic and cognitive capacities demand more interpretive context than textualism permits).
179. See Eskridge. supra note 49, at 1301 (noting that textualists in statutory interpretation often use originalist materials in constitutional interpretation).
180. See supra notes 5-11 and accompanying text.
181. See supra notes 5-11, 92-96 and accompanying text (supplying examples of judicial resort to these forms of official history).
182. See generally Eskridge, supra note 49 (providing an extended comparison of the two categories); see also John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 GEO. WASH. L. REV. 1337, 1337-40 (1998) (sketching permissible textualist uses of originalist materials).
183. See David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. REV. 953, 1021 (1994) ("The textualist, intentionalist, and teleological approaches to finding treaty meaning roughly match up with the prevailing schools in statutory construction."); Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. PA. L. REV. 687, 743-48 (1998) (comparing legislative history and travaux under the rubric of "drafting history"). Other recent literature crosses the divide between public and private law by comparing legislative history with contractual parol evidence. See Mark L. Movsesian, Are Statutes Really "Legislative Bargains"? The Failure of the Contract Analogy in Statutory Interpretation, 76 N.C. L. REV. 1145, 1184-85 (1998) (comparing the negotiating history of contracts with the legislative history of statutes); Eric A. Posner, The Parol Evidence Rule, the Plain Meaning Rule, and the Principles of Contractual Interpretation, 146 U. PA. L. REV. 533, 573 (1998) (same).
184. See David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. REV. 953, 1021 (1994) ("The textualist, intentionalist, and teleological approaches to finding treaty meaning roughly match up with the prevailing schools in statutory construction."); Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. PA. L. REV. 687, 743-48 (1998) (comparing legislative history and travaux under the rubric of "drafting history"). Other recent literature crosses the divide between public and private law by comparing legislative history with contractual parol evidence. See Mark L. Movsesian, Are Statutes Really "Legislative Bargains"? The Failure of the Contract Analogy in Statutory Interpretation, 76 N.C. L. REV. 1145, 1184-85 (1998) (comparing the negotiating history of contracts with the legislative history of statutes); Eric A. Posner, The Parol Evidence Rule, the Plain Meaning Rule, and the Principles of Contractual Interpretation, 146 U. PA. L. REV. 533, 573 (1998) (same).
185. See David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. REV. 953, 1021 (1994) ("The textualist, intentionalist, and teleological approaches to finding treaty meaning roughly match up with the prevailing schools in statutory construction."); Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. PA. L. REV. 687, 743-48 (1998) (comparing legislative history and travaux under the rubric of "drafting history"). Other recent literature crosses the divide between public and private law by comparing legislative history with contractual parol evidence. See Mark L. Movsesian, Are Statutes Really "Legislative Bargains"? The Failure of the Contract Analogy in Statutory Interpretation, 76 N.C. L. REV. 1145, 1184-85 (1998) (comparing the negotiating history of contracts with the legislative history of statutes); Eric A. Posner, The Parol Evidence Rule, the Plain Meaning Rule, and the Principles of Contractual Interpretation, 146 U. PA. L. REV. 533, 573 (1998) (same).
186. See David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. REV. 953, 1021 (1994) ("The textualist, intentionalist, and teleological approaches to finding treaty meaning roughly match up with the prevailing schools in statutory construction."); Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. PA. L. REV. 687, 743-48 (1998) (comparing legislative history and travaux under the rubric of "drafting history"). Other recent literature crosses the divide between public and private law by comparing legislative history with contractual parol evidence. See Mark L. Movsesian, Are Statutes Really "Legislative Bargains"? The Failure of the Contract Analogy in Statutory Interpretation, 76 N.C. L. REV. 1145, 1184-85 (1998) (comparing the negotiating history of contracts with the legislative history of statutes); Eric A. Posner, The Parol Evidence Rule, the Plain Meaning Rule, and the Principles of Contractual Interpretation, 146 U. PA. L. REV. 533, 573 (1998) (same).
187. See supra note 53.
188. See supra note 8 (describing traditional doctrines that exclude legislators' and judges' testimony).
189. This position is used as an illustration; I do not endorse it. On the merits of the institutional arguments, there are reasons to fear that judicial recourse to legislative history harms legislative deliberation a great deal. This is an implication of Jeremy Waldron's observation that a large and diverse group of legislators must rely upon the formal text of a proposed bill, which "provides a focus for the ordering of deliberation at every stage." Jeremy Waldron, The Dignity of Legislation, 54 MD. L. REV. 633, 663 (1995).
190. See Manning, supra note 89, at 695 ("Textualism, in short, purports to operate as a nondelegation doctrine.").
191. See Vermeule, supra note 8, at 1860-63.