On Monday at the Supreme Court, Justices Stephen G. Breyer and Antonin Scalia engaged in a  skirmish over one of their favorite topics: using committee reports and other legislative history to help interpret a statute (Breyer) versus relying strictly on the text of a law (Scalia).

Breyer, who was a Senate staff member in the late 1970s, has relied on that experience to inform his view that committee reports, which are written by congressional staffers, at least inform the legislative intent of Congress. Scalia began outlining his views on textualism in the 1980s.

In 1997 and 2005, respectively, Scalia and Breyer published books outlining their views on statutory interpretation in greater detail. They later came up with a road show of sorts to continue the debate before interested audiences.

The debate re-emerged Monday during oral arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a case about whether Indian tribal courts have jurisdiction to hear civil tort claims against non-members of the tribe. (The facts involve a teenage participant in a “youth opportunity program” that placed him in a job at a Dollar General store in tribal land, where he was allegedly sexually assaulted by an employee of the store.)

Arguing on behalf of the federal government on the side of the Choctaw Indians, Deputy Solicitor General Edwin S. Kneedler re-ignites the history vs. text debate by mentioning the legislative committee reports related to the Indian Tribal Justice Act, a 1993 federal statute designed to strengthen tribal courts as a symbol of tribal sovereignty.

Scalia takes him to task, somewhat gently.

“Do you think everybody who voted for that statute was aware” of the implications of some Supreme Court decisions that were the backdrop for the law, he asked. They were aware of the relevant cases because “that’s what the committee report says,” he asked, derisively.

It is the kind of jab at legislative history Scalia makes from time to time during arguments. Today, however, Justice Sonia Sotomayor joins the fight, on Breyer’s side.

“Mr. Kneedler,” Sotomayor says, “I think it was very clear from the committee report here, every word you’ve said, and some of us do believe that since a bill is sent with the committee report and Congress is voting on both, if a member hasn’t read it, they’ve abused their official responsibility.”

Scalia turns in her direction with a look of disbelief, then leans forward. “Does Congress vote on the committee report, Mr. Kneedler?” he asks.

Sometimes, Kneedler says.

Breyer steps in, saying “It does not, not normally.” He then launches into some procedural arcania that perhaps only a former Senate staffer could truly understand.

“If they vote on the committee report in any instance where there is a reconciliation between the two houses because it comes back in the form a vote, do you accept the report of the joint committee?” says Breyer.

“Which was not here,” Scalia says, meaning not the case with the Indian Tribal Justice Act.

The Chief Justice asks Kneedler if that’s the case. “Did they vote … on the committee reports here?” he says.

“My point was that this was a —” Kneedler says before Roberts interrupts him.

“I’m sorry about your point,” the Chief says. “Did they vote on the committee reports?”

“No, they did not vote,” Kneedler says.

Breyer is not ready to leave the old battle just yet.

“If we’re getting into this,” he says, “I’m sort of interested because I bet it could be true that the president of IBM, for example, does not himself read everything that the entire million-man staff — or million-person staff — at IBM in fact prepares for the public.”

Scalia makes one more attaque au fer. “He’s an executive, isn’t he?” Scalia says. “Isn’t the chairman of IBM an executive? And executives can delegate authority.”

The Chief Justice steers the argument back to the case. “I think Justice Sotomayor had a question on the floor,” he says.

“We’ve gotten off on a side trip,” Sotomayor says, as she steers the argument back to tribal courts.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case. The author of this post, however, is not affiliated with the law firm.]

Posted in Dollar General Corporation v. Mississippi Band of Choctaw Indians, What's Happening Now

Recommended Citation: Mark Walsh, A “view” from the Courtroom: Committee of the Whole, SCOTUSblog (Dec. 8, 2015, 9:15 AM), http://www.scotusblog.com/2015/12/a-view-from-the-courtroom-committee-of-the-whole/