Barrett v. Jackson: Textualism in Practice

Anyone who has studied law for the last thirty years is familiar with the debates over legislative history: whether it should count at all, and if so, how much weight it deserves. Justice Scalia dedicated himself to reminding everyone that legislative history ought not to be cited, and he frequently dissented whenever an opinion relied on such material. Even today, some Justices who invoke legislative history hedge about it, prefacing their remarks with phrases like “For those who find legislative history useful,” as if they were sheepishly admitting a controversial loyalty.

On the current Court, however, Justice Jackson appears eager to revive dependence on legislative history. The most recent clash in the textualist-versus-text debate occurred in FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd, which asked whether the Investment Company Act could be read to imply a private right of action. I won’t weigh in on the statute’s merits here, since that’s not my focus. Instead, I want to spotlight the clash between Justice Barrett’s majority view and Justice Jackson’s dissent.

Jackson may portray herself as carrying forward Justice Breyer’s legacy. Yet her argument runs deeper: she treats a rejection of legislative history as another instance of the conservative tendency to scorn Congress. In support of this, she cites Victoria Nourse, who argued that the court’s approach sometimes reflects a broader academic disdain for Congress and that the judiciary should not base its jurisprudence on such contempt.

The majority’s reluctance—or outright refusal—to embrace this approach may derive from a widespread belief among commentators that Congress simply cannot have knowable subjective intent. Yet the modern Court frequently looks to Congress’s aims when interpreting statutes, even if the textual record is imperfect.

This stance aligns with Jackson’s broader defense of judicial restraint. She contends that the Court should not strike down Congress’s work unless there is a clearly established reason to do so. Her articulation stresses that legislative history is a legitimate tool to prevent judges from substituting their preferences for the people’s will. But when the text is unclear, discarding legislative history reduces the Court’s assessment of legislative intent to a hollow gesture and risks elevating judges’ own policy judgments above the law.

Jackson appears to be Franciscan in her approach—though she did not always align with every turn of the First Circuit on matters involving Trump. I was nonetheless disappointed that she did not author a separate opinion in Trump v. Anderson. She was prepared to, but ultimately held back.

It makes sense that Chief Justice Roberts assigned the statutory-interpretation discussion to Justice Barrett. A former Scalia clerk and law professor, she thrives in these purely academic debates. Still, Jackson raised points that Barrett did not respond to, suggesting that Barrett believes the debate was effectively settled in the past. Yet new developments call for fresh analysis. Textualists cannot merely lean on Scalia’s laurels forever. If textualism is to remain viable, it must confront modern criticisms rather than declare victory and move on. The Court’s conservatives must engage with these critiques or risk losing ground to alternative approaches.

First, Jackson draws on empirical work by Abbe Gluck and Lisa Bressman, which examines how members of Congress themselves view textualism. The gist is that lawmakers sometimes treat legislative history as more informative about a statute’s purpose and intended meaning than the text alone. This finding challenges the assumption that legislative history is inherently suspect and urges a reassessment of how the legislative record informs statutory interpretation.

In practice, such reports can shape a bill’s trajectory, and there is evidence that lawmakers pay attention to these documents—perhaps more than to the statute’s text—to understand why a law exists and what it is meant to achieve.

The author did not observe Justice Scalia explicitly addressing textualism in action, and Barrett’s reference to Gluck and Bressman touches on a crucial point while avoiding the deeper conclusion about how legislative history influences members of Congress and staff alike. That omission invites scrutiny.

Second, the major questions doctrine compels the Court to consider nontextual inquiries into legislative intent.

Consistent with a traditional critique of courts’ reliance on legislative history, the majority’s hesitancy to use this interpretive tool seems rooted in the intuition that Congress’s subjective intent is inherently unknowable. Yet the contemporary Court frequently infers congressional aims when interpreting statutes, sometimes relying on a broad understanding of legislative intent to justify conclusions about delegation and power.

Justice Scalia once warned about the dangers of reading legislative history as though it were a roadmap for future litigation. He treated records from the Constitutional Convention as historically interesting but not legally binding in the same way as later legislative documents. The ratification debates were public and unlikely to have been crafted to influence judicial decisions, so their value as interpretive sources is not the same as that of the legislative history attached to statutes. Meanwhile, the Federalist Papers—advocacy documents—offer arguments on both sides of debates and do not constitute ordinary legislative history. Taken together, all these sources can illuminate original meaning, even though many originalists insist on relying solely on the constitutional text.

Third, the Roberts Court has shown a reluctance to imply new causes of action, even when decades ago a statute might have been read as implying one. Barrett addresses this trend:

Private litigants sometimes sue to enforce statutes that lack direct language granting such rights. There was a time when the Court permitted this; it reasoned that courts should provide remedies necessary to give effect to congressional purposes underlying a statute. But the current Court has largely abandoned that practice. We interpret statutes rather than invent new rights of action. If a statute does not explicitly grant a remedy, we examine its text and structure to determine whether an implicit remedy exists.

How should the present Court treat legislative history that came to life under the Burger Court? In the late 1970s, Congress could reasonably assume the judiciary would lean on legislative history; now, however, the judiciary has largely rejected those sources.

Fourth, Justice Jackson notes that the Court often cites legislative history in the name of originalism:

Indeed, what one might call the majority’s problem—its rejection of legislative history as almost extralegal—is, in fact, an odd outlier. This odd stance is particularly striking coming from a Court that eagerly probes ratification debates, the Framers’ private correspondence, and the Federalist Papers to determine what the Framers would have understood, recognized, and expected.

This is not a new argument, but it deserves attention. Scalia rejected legislative history in part because he worried these materials were designed to affect upcoming cases. But the records of the Constitutional Convention were sealed and published much later; their purpose was not to guide judges in a specific dispute. The ratification debates were public, but it is unlikely that participants intended to steer judicial decision-making in 1788 or 1789. The Federalist Papers, by contrast, are advocacy documents—not a straightforward legislative history, but valuable for understanding arguments on both sides during a critical period. All these sources can illuminate original meaning, though many originalists choose to ignore them entirely and focus solely on constitutional text, ignoring post-Founding developments.

Finally, a word on Justice Barrett’s rhetoric. For readers with Notre Dame ties, this may sting a bit to admit, but there is a sense that Barrett prefers the sharp one-liner over deeply reasoned legal argument.

She writes, “The judicial task is to read words, not minds.” That sounds appealing, yet the entire premise of the major questions doctrine is to look beyond the text to discern what the legislature intended. Should a babysitter have to guess the mother’s intent?

In this passage, she leans on a sentiment that evokes reverence for the Church of the Holy Trinity:

At bottom, the dissent seeks to revive an old devotion to legislative history. Instead of winning converts, the dissent reveals why the interpretation of statutes must center on the text—and, to borrow Justice Robert Jackson’s line, why interpretation should be driven by careful statutory analysis rather than psychoanalysis of Congress.

Why insist on phrases like “old-time devotion” or “winning converts”? It reads as a sharp jab—perhaps a song as much as an argument. Jackson keeps pressing that the court’s reliance on legislative history changed its tune in the late 1980s, moving away from a long-standing tradition toward a different approach.

Barrett probably should have left that kind of flourish out. It wasn’t particularly clever, and it didn’t advance the point as effectively as it might have.

The reference to Justice Robert H. Jackson also raises eyebrows. That exact citation—one that has echoed through many a legislation textbook—was used by Barrett, and Jackson herself had used it as well. If Barrett had seen the draft dissent beforehand, she might have pruned it; she chose not to, perhaps because she believed Scalia’s approach still had force.

Conservatives often direct their ire at Justice Jackson, and there is some justification for that. I, too, occasionally find her relentless questioning during oral argument to be irksome. Yet she is actively attempting to shape jurisprudence. She is making moves that Sotomayor or Kagan rarely match in terms of lasting influence, even if those justices have produced notable dissents in select cases. It is hard to point to a single dissent by either of them in the last twenty years that has left a lasting imprint outside the specific case, though their broader contributions deserve credit.

If I am being candid, I suspect Justice Jackson envisions herself in a role akin to what Justice Scalia wielded in the late 1980s: a force who could shift the Court’s direction through sharp wit, robust argument, and prolific solo dissents. Scalia’s charisma often softened the edge of his critiques, and I doubt anyone will match his blend of intellect and charm. Justice Jackson may not possess the same talent set, but she is certainly crafting methods to leave a mark on the law. In that sense, she earns recognition for her efforts.