Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?
There are two principal aspects of my thesis. First, it is desirable to consider seriously these legislative signals of approval and disapproval, because a blanket rejection, or even systematic hostility, imposes significant opportunity costs on Congress. If the judiciary refuses to consider these signals, Congress will have to expend extra resources to achieve the same ends. That expense will diminish the institution’s ability to enact other laws and in some cases will alter the character of the other laws that it is able to enact. The consequent diminution or depletion of Congress’s legislative authority is unhealthy from a democratic perspective and reflects an unwarranted disrespect for Congress’s chosen means of conducting its legislative business.
Second, it is possible to credit these signals in a manner that is limited to appropriate circumstances. Legislative history expressing approval or disapproval of judicial decisions is susceptible to manipulation and abuse. Accordingly, its interpreters need specific criteria that can separate the wheat – expression that can be fairly imputed to Congress – from the chaff – expression that reflects, at most, the commitment of individual members or their staff.