THE CONFOUNDING COMMON-LAW ORIGINALISM IN RECENT SUPREME-COURT STATUTORY INTERPRETATION - IMPLICATIONS FOR THE LEGISLATIVE HISTORY DEBATE AND BEYOND

Recent scholarship on the Supreme Court's statutory interpretation pra ctices has focused on originalist vs. nonoriginalist approaches to leg islative language, with special attention to the rise of ''textualism' ' as a leading form of originalist interpretation. One important aspec t of the perceived textualist ascendance is a decline in the Court's u se of legislative history, an interpretive resource grounded in the mo re traditional ''intentionalist'' approach to statutes. In her empiric al study of the interpretive resources applied by the Court in its Oct ober 1996 Term decisions addressing statutory questions, Professor Jan e Schacter detects judicial trends that run counter to the academic li terature. Professor Schacter's study demonstrates that, contrary to re cent empirical analyses finding minimal usage of legislative history b y the Justices, the Court invoked legislative history in nearly 50% of the statutory interpretation cases decided in 1996 Based on an analys is of other sources used by the Court, Professor Schacter argues that the Court's recent statutory jurisprudence confounds the conventional interpretive divides that structure much of the contemporary cholarshi p, reflecting instead what she calls ''common law originalism.'' This approach is evidenced by the Court's extensive use of not only statuto ry language, but precedent, judicially-selected policy norms; other st atutes (including state statutes), canons of construction, and seconda ry sources, among other interpretive resources. Professor Schacter arg ues that recognizing the common law originalism reflected in the Court 's decisions exposes weaknesses in both recent textualist critiques of legislative history and in the conventional understanding of controve rsies about statutory interpretation.