120. Alito vs. Scalia vs. Scalia

Tony Mauro has a piece at Legal Times / Law.com about an Alito / Scalia "spat":

Just four months after joining the Supreme Court, Samuel Alito Jr. on Monday joined the club of jurists who have been targets of Justice Antonin Scalia's wrath.

Alito wrote Zedner v. United States for a unanimous Court on Monday, siding with a criminal defendant in a dispute over interpretation of the Speedy Trial Act. But Scalia, while joining the decision, wrote a concurrence criticizing Alito for citing the legislative history of the statute, which Scalia believes is irrelevant.

"Because the use of legislative history is illegitimate and ill advised in the interpretation of any statute -- and especially a statute that is clear on its face -- I do not join this portion of the Court's opinion," Scalia wrote.

Mauro sees this as evidence that Alito won't be Scalia's "consistent conservative ally and friend. ...   Alito's use of legislative history places him closer to the camp of moderate-liberal Justice Stephen Breyer, who last year warned in his book Active Liberty of 'the danger that lurks where judges rely too heavily on text.'"

That seems like way, way too much to read into the episode.  Scalia makes two points in his little concurrence, and the one Mauro doesn't highlight is at least as interesting as the other:

It may seem that there is no harm in using committee reports and other such sources when they are merely in accord with the plain meaning of the Act. But this sort of intellectual piling-on has addictive consequences.

The superfluity of the appeal to legislative history suggests that Alito is letting his clerks write his opinions.  Just because some clerk dug up some interesting little tidbit in his or her researches is, or ought to be, an insufficient reason for stuffing the tidbit into an opinion.   Little Jack Horner has reason to be proud of the plum he found - and you don't graduate first from Harvard Law if you don't live for the tingling sensation of hearing august professors say what a good boy you are.  But a disciplined justice would eliminate the dead space in the middle of his opinion.

Then again, a disciplined justice (an oxymoron?) would also refrain from using snappy but meaningless phrases such as "addictive consequences."  I don't think Scalia meant that the consequences of the practice are addictive, as opposed to the practice itself, but that's what he said.  But even his intended meaning is no more than a lazy metaphor, nearly as stale as Breyer's lurking danger - both are drawn from that "huge dump of worn-out metaphors which have lost all evocative power and are merely used because they save people the trouble of inventing phrases for themselves." 

(The linked website presents Orwell's rules of clear writing in chart form.  It's a handy guide to legal writing - everything Orwell said to avoid, lawyers and judges, and their Little Jack (and Jill) Horner clerks, routinely do.   An equally-useful guide to the thinking habits of lawyers is also available on the web.  You could pick any volume of any West reporter off the shelf randomly and find within its covers at least one example of every one of the sophistries catalogued by Aristotle 2,350 years ago.)

But the part of Scalia's little concurrence that Mauro commented upon is interesting for reasons unrelated to the Scalia-Alito palship, too.  Here's what Scalia wrote:

I believe that the only language that constitutes “a Law” within the meaning of the Bicameralism and Presentment Clause of Article I, §7, and hence the only language adopted in a fashion that entitles it to our attention, is the text of the enacted statute. ... 

[Alito's reference to legislative history] accustoms us to believing that what is said by a single person in a floor debate or by a committee report represents the view of Congress as a whole—so that we sometimes even will say (when referring to a floor statement and committee report) that “Congress has expressed” thus-and-so. See, e.g.,  Conroy, supra, at 516–517. There is no basis either in law or in reality for this naive belief. ...  Because the use of legislative history is illegitimate and ill advised in the interpretation of any statute—and especially a statute that is clear on its face—I do not join this portion of the Court’s opinion.

Scalia's point is a valid one, I think.  There are, after all, 535 members of Congress, which means 535 sets of motivation.  But then, why isn't the point even more valid when used to describe the intent of the Framers (whoever they were)?  (See post 79 and post 81.)  Why does Scalia himself so often quote the words of individuals for purposes of illustrating the unified intent of all the Framers?  (See post 30.)

I've long wondered if there were any intellectually honest way to reconcile Scalia's theory of statutory interpretation with his theory of constitutional interpretation.  I keep thinking that Scalia himself must be aware of the seeming contradiction and must have written a long, bullying and amusing explanation of why people like me are morons to doubt him.  But I've never seen it.

Comments

[HOLDERMisty25]

freelance writer

[JoanneHUNTER]

freelance writer