What is “Laundering” Legislative History?

Gluck argues that conservative judges, who publicly distance themselves from legislative history to maintain their “textualist” credentials, are actually using it indirectly.

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Instead of citing a Congressional Committee Report directly (which might look “activist” or non-textualist), a judge will cite a previous Supreme Court case that already did the work of looking at that report.

The “Laundry” Cycle:

1. The Source: A 1950s Committee Report explains the purpose of a law.
2. The Precedent: A 1980s Supreme Court opinion cites that report to define the law’s goal.
3. The Modern Ruling: A current “textualist” judge cites the 1980s case to explain the law’s goal, effectively using the 1950s report without ever having to mention it.

Key Examples from the Article

• Judge Gregory Katsas: In a case regarding the January 6th defendants, he wanted to use the history of financial laws created after the Enron scandal. He chose to cite Yates v. United States (an opinion by liberal Justice Ginsburg) instead of the legislative history itself to avoid a “sideshow” about his judicial philosophy.
• Justice Brett Kavanaugh: In Quarles v. United States, he discussed Congress’s intentions regarding burglary by quoting an older case (Taylor), which had itself relied heavily on hearing transcripts and committee reports.
• Justice Amy Coney Barrett: In ZF Automotive, she quoted a phrase about judicial assistance that was a direct lift from a Senate report, but she attributed the quote to an earlier opinion by Justice Ginsburg rather than the Senate report itself.

Why This Matters

• For Lawyers: It means that “dead” tools like legislative history are actually still very much alive. To win a case, showing the purpose of a law still carries weight, even if you have to “package” it through existing precedent.
• For the Law: It suggests that pure textualism is difficult to maintain. Gluck argues that federal statutes aren’t written for “ordinary people” to read; they are technical documents. To understand them, judges—even conservative ones—eventually find themselves looking back at what Congress actually intended to do.

The Bottom Line: The “textualist revolution” is incomplete. While the language of judicial opinions has changed to focus on text, the logic often remains tethered to the history and purpose behind the laws.

Do you think this “laundering” is a practical compromise for judges, or does it undermine the transparency of how they reach their decisions?