Scalito, you illegitimate bastard

[D. Scarlatti]

Associate Justice Samuel Alito received a little spanking from his purported mentor Justice Scalia yesterday in the form of an admonition for looking to legislative history in interpreting a federal statute.

Alito wrote a unanimous opinion that contained one paragraph pointing to some language in House and Senate reports that accompanied the legislation in question, explaining that the record also supported the Court's opinion.

Scalia wrote a concurrence joining Alito's opinion in full, aside from that one paragraph, which he called "illegitimate and ill advised." If, Scalia said, the Court can reach its decision based on the unambiguous text of the statute itself, then there is no need to delve into legislative history, for whatever reason.

Scalia has a solid point, and his distaste for using legislative history is well known, but it's interesting that Alito left the offending paragraph in the opinion, which surely he knew would force Scalia to object.

At any rate, it shows that Alito isn't necessarily the "Scalito" that some have predicted. Or maybe he just did it for fun, to piss Scalia off.

[livius drusus]

Originally Posted by D. Scarlatti

If, Scalia said, the Court can reach its decision based on the unambiguous text of the statute itself, then there is no need to delve into legislative history, for whatever reason.

Does that mean that if the Court can't reach a decision based on unambiguous text Scalia accepts that there might be a need to examine legislative context, or is his distate for the practice absolute?

[ms_ann_thrope]

Originally Posted by livius drusus

Does that mean that if the Court can't reach a decision based on unambiguous text Scalia accepts that there might be a need to examine legislative context, or is his distate for the practice absolute?

LOL, when you're Scalia, everything you possibly need in order to reach a conclusion is contained within the body of Constitution. Don't even look at the Amendments, they obviously were afterthoughts and nothing good has come from them, anyway.

Just kidding, I'll let Scarlatti or Maturin give a more scholarly answer, but offhand I don't recall any Scalia opinions that involve more than cursory looks at legislative histories. And don't EVEN think about paying any attention to jurisprudence of other countries!

[D. Scarlatti]

Originally Posted by livius drusus

Does that mean that if the Court can't reach a decision based on unambiguous text Scalia accepts that there might be a need to examine legislative context, or is his distate for the practice absolute?

Good question, and it's difficult to answer briefly, but I would say it's about as absolute as you can get. He's not so much averse to examining context, broadly speaking, in order to determine the purpose of a statute. There are several other ways to go about determining the purpose behind ambiguous language without looking at the legislative history of a particular statutory provision - other provisions within the broader framework of the statutory scheme, for example.

As for committee reports, he's pretty much completely opposed to their use. For one reason, they're simply not trustworthy, and legislators (not to mention lobbyists) and their staffers have learned over the years, because courts often do use them to determine the meaning of statutes, to smuggle meaning in that might not necessarily appear in the final text.

More importantly to Scalia, I think, is that committee reports are not law, and he doesn't think courts have any business looking to something other than law. The greatest danger to Scalia is that courts will find meaning in committee reports that actually contradicts the language of the statute, and this does happen.

In a 1989 case called Blanchard v. Bergeron, the Supreme Court looked at committee reports that discussed several lower court opinions, and attempted to reconcile all of this into an understanding of the statute that rested on top of it all. Scalia sarcastically criticized the majority:

Congress is elected to enact statutes rather than point to cases, and its Members have better uses for their time than poring over District Court opinions. That the Court should refer to the citation of three District Court cases in a document issued by a single committee of a single house as the action of Congress displays the level of unreality that our unrestrained use of legislative history has attained. * * *

What a heady feeling it must be for a young staffer, to know that his or her citation of obscure district court cases can transform them into the law of the land, thereafter to be dutifully observed by the Supreme Court itself.

And yes, as ms. ann points out, god help you if you drag the law of foreign jurisdictions into the equation.

[livius drusus]

Well, I definitely find his sarcasm compelling argument as well as entertaining. I didn't even realize "legislative history" encompassed committee reports. I think when I read the term I had something like earlier versions of the bill itself in mind, or the other provisions within the broader statutory scheme approach you mention.

So it seems I agree with Scalia, then. Weird. Now I know how the beast inside Maturin feels.

[D. Scarlatti]

Originally Posted by livius drusus

I agree with Scalia, then.

You know he's not a real Italian, right? I mean, he's from New Jersey or something.

[livius drusus]

I know. God, I know. Insult, meet injury.

[D. Scarlatti]

Well, he certainly does have a point, occasionally. He's admired for his "rigor."

[D. Scarlatti]

The following is an exchange between two U.S. Senators Scalia once footnoted in an old opinion when he was on the D.C. Circuit, which he found "illuminating" with respect to the use of committee reports for interpreting statutes:

Mr. ARMSTRONG: *** My question, which may take [the Chairman of the Committee on Finance] by surprise, is this: Is it the intention of the chairman that the Internal Revenue Service and the Tax Court and other courts take guidance as to the intention of Congress from the committee report which accompanies this bill?

Mr. DOLE: I would certainly hope so. ***

Mr. ARMSTRONG: Mr. President, will the Senator tell me whether he wrote the committee report?

Mr. DOLE: Did I write the committee report?

Mr. ARMSTRONG: Yes.

Mr. DOLE: No; the Senator from Kansas did not write the committee report.

Mr. ARMSTRONG: Did any Senator write the committee report?

Mr. DOLE: I have to check.

Mr. ARMSTRONG: Does the Senator know of any Senator who wrote the committee report?

Mr. DOLE: I might be able to identify one, but I would have to search. I was here all during the time it was written, I might say, and worked carefully with the staff as they worked. ***

Mr. ARMSTRONG: Mr. President, has the Senator from Kansas, the chairman of the Finance Committee, read the committee report in its entirety?

Mr. DOLE: I am working on it. It's not a bestseller, but I am working on it.

Mr. ARMSTRONG: Mr. President, did members of the Finance Committee vote on the committee report?

Mr. DOLE: No.

(Senator Armstrong goes on to point out that the committee report had very little to do with the law that actually was passed, or even with the voting and amendment process through which the law was shaped.)

[livius drusus]

Originally Posted by D. Scarlatti

Mr. ARMSTRONG: Mr. President, will the Senator tell me whether he wrote the committee report?

Mr. DOLE: Did I write the committee report?

Mr. ARMSTRONG: Yes.

Mr. DOLE: No; the Senator from Kansas did not write the committee report.

Third person, first person, first person, third person.

That's quite a potent footnote there.

[D. Scarlatti]

I'm glad you're laughing too, because sometimes I think there must be something wrong with me for finding this stuff endlessly amusing. This is part of what they call "The Great Legislative History Debate."

[livius drusus]

Oh I wouldn't go so far as to say there's nothing wrong with you, but if there is, it's wrong with me too.

P.S. Robeson in front of HUAC is gold, man. Gold.

[Clutch Munny]

Originally Posted by livius drusus

P.S. Robeson in front of HUAC is gold, man. Gold.

Give ya chills, that will. I think the scumbags currently running the USA would burst into flames if confronted with such intense honesty.