Comments on: Decisions: Court rules on RICO claim, 3 other cases

By: Simon

Simon — Mon, 05 Jun 2006 19:24:28 +0000

Marc-
Sadly, I agree that it is all starting to look more like Caporetto than Omaha Beach.

Federalist-

The legislative history provides some clues [to the legislature's purpose], and judges can therefore, albeit exceedingly carefully, use the history as evidence of what the statute was trying to accomplish, which could resolve an ambiguity.

Without meaning to provoke a by-now exceedingly well-rehearsed argument about the value of legislative history, I would point out that the legislative history is not the statute, and no two legislators need share common purpose (or, for that matter, any purpose at all) in order to pass the law. Even if I thought legislative intent were conclusive as to the meaning of a law, I would not be of the opinion that legislative history is a good bellweather of that that intent was. In my view, it is never appropriate to look to the legislative history in construing the meaning of a law, and just as excessive deference to Congressional authority encourages Congress to reach further and further beyond its bailiwick, so for courts to look to legislative history only encourages Congress to write sloppier and sloppier legislation. For reasons formalist, normative and practical, it should never be cited.

By: Marc Shepherd

Marc Shepherd — Mon, 05 Jun 2006 18:13:07 +0000

Correction: only two of Scalia’s colleagues are older than he is (although Kennedy is younger by only a few months).

By: Marc Shepherd

Marc Shepherd — Mon, 05 Jun 2006 18:11:55 +0000

The Scalia concurrence is surprising, as he has often made a similar point in a one-sentence concurrence. Although Justices Roberts and Alito are new to the Court, they could hardly have been unaware of Scalia’s well known view on the matter.

“I had hoped that the arrival of the new Justices might turn the tide on this matter, and the tone (and extent) of Scalia’s concurrence in this case suggests he believes that battle might yet be won.”

Unlikely, given the slow pace of change at the Court. Only three of the current Justices are older than Scalia, so a majority of them will probably still be there after he’s long gone. Scalia’s orthodoxy on this issue simply isn’t yet widely shared, and perhaps it will never be.

I do agree that this concurrence could represent frustration with opinions that are yet to appear, and which are headed in directions he disapproves of. But in writing as he did, I suspect he is addressing a broader public, and not his current colleagues, who have already made up their minds about when legislative history is relevant to judicial decision-making.

By: federalist

federalist — Mon, 05 Jun 2006 17:29:23 +0000

While I am a big fan of Scalia’s, and I agree with his skepticism re: legislative history, it’s hard to get worked up about Alito’s use of it here. (One of Scalia’s best lines comes from a case where he rips on using legislative history–”I decline to participate in this process.”)

One of the oldest rules of statutory construction is the “what harm did the legislature wish to fix?” question. The legislative history provides some clues, and judges can therefore, albeit exceedingly carefully, use the history as evidence of what the statute was trying to accomplish, which could resolve an ambiguity.

By: Simon

Simon — Mon, 05 Jun 2006 17:03:22 +0000

An instant Scalia classic in Zedner. I think it’s a little disappointing that Alito has chosen to dabble, even in a case where it’s mostly harmless, but it’s not quite unexpected: one notes that S.D. Warren Co. v. Maine Bd. of Environmental Protection earlier this term, only Scalia refused to join that part of the opinion discussing legislative history. Our Fearless Leader and Justices Thomas and Alito seemed perfectly comfortable with it. I had hoped that the arrival of the new Justices might turn the tide on this matter, and the tone (and extent) of Scalia’s concurrence in this case suggests he believes that battle might yet be won.

Unsettling stuff.

By: egroeg

egroeg — Mon, 05 Jun 2006 17:03:15 +0000

I believe that the transcript for the reargument in Hudson v. Michigan, 04-1360, is supposed to be available online (reargument date was May 18, 2006). However, when I click on the link on http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html, what I get is the original argument transcript which was dated January 9, 2006). Can anyone help with this?

By: tabman

tabman — Mon, 05 Jun 2006 16:55:25 +0000

Are there opinions possible tomorrow, or is the next possible opinion date next Monday, if anyone knows?

Thanks.

By: Kent Scheidegger

Kent Scheidegger — Mon, 05 Jun 2006 16:42:51 +0000

Note that Justice Scalia went out of his way to denounce the use of floor debates, even though the majority opinion in this case refers only to committee reports.

Perhaps this is his windup, and the pitch is coming in Hamdan.

By: Peter G

Peter G — Mon, 05 Jun 2006 16:39:06 +0000

Re: Zedner, the Speedy Trial Act decision — Here we have another (essentially) unanimous opinion for the criminal defendant by Justice Alito; two in a row, I believe. I also find it interesting that Justice Scalia undertook to lecture SAA at greater length and in greater detail than unusual for relying (as a makeweight) on legislative history.

By: Peter G

Peter G — Mon, 05 Jun 2006 16:30:14 +0000

Re: Zedner, the Speedy Trial Act decision — Another (essentially) unanimous opinion for the criminal defendant by Justice Alito. Interesting that Justice Scalia undertook to lecture Alito at greater length and in greater detail than unusual for relying (as a makeweight) on legislative history.