As with MQD, one could debate whether the Sagebrush Canon is new with Sackett. Both cite prior cases that make similar moves. Yet this canon probably has legs that the precursors didn’t. That has as much do to with the Court’s perceived receptivity to future invocations of it, and some lower courts’ willingness to run with it, than with anything different about the latest formula of words. Again, like MQD. Sagebrush is poised to be an importantly new canon, but we don’t know for sure yet.

3/3

The unacknowledged ancestor of the Sagebrush Canon is Scalia’s dissent in Babbitt v. Sweet Home, an ESA case. Nowhere mentioned in Sackett, Babbitt is nonetheless a close parallel — except for the result. 1970s environmental statute, clash between statutory definition and historic usages, broad agency interpretation blessed by legislative amendment, property rights vs. green values. (Also, odd twist, the landowner is invoked by Scalia and Alito, not the Court’s Westerners.)

2/3

Updating this thread to note that the draft is now posted on SSRN.

“Supreme Court Litigators in the Age of Textualism” examines 35 years’ worth of #SupremeCourt briefs to see how litigators’ use of interpretive tools has changed over time and how their practices compare to the Court’s practices.

Link here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4339838

#appellatetwitter #appellatemastodon

Abstract:

(post 4 of 4)

I also looked at different kinds of litigants. Elite litigators seem to be a little more responsive to the Court’s shifting patterns compared to non-elites.

The Solicitor General has a high and pretty steady rate of citation of legislative history compared to other litigants, though it too emphasizes it less than in the past.

The paper isn’t on SSRN yet, but I’ll update this with a link when available.

(3 of 4)

Opinions citing only dictionaries are now common. Briefs cite both sources.

However, the briefs emphasize legislative history much less than they used to. See the picture below, which shows two different measures of emphasis. The panel on the left shows a drop in briefs that cite legislative history at least three times (dotted blue line). The panel at right shows references to legislative intent (blue) and plain meaning (red) in argument headings in tables of contents.

Also . . .

(post 2 of 4)

The time period is 1985 to 2020, and I have over 8000 briefs.
Both the Court’s opinions and the briefs cite textualist tools (dictionaries and textual canons) more than they used to, as one would expect. The Court cites legislative history less than it used to, but the briefs do not parallel the decline in the opinions’ use of that tool. See the image, which has corresponding charts for briefs (left) and opinions (right). Dictionaries are red lines, leg hist are blue.

. . .