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Tribute: Justice Scalia’s hapless law clerk

John F. Duffy is the Samuel H. McCoy II Professor of Law at University of Virginia School of Law. He served as a law clerk to Justice Scalia during October Term 1992.

At the end of every Supreme Court Term, Justice Antonin Scalia allowed each of his law clerks to choose one opinion that he would sign and give to the clerk as a small memento of the year. Most clerks, I am pretty sure, try to select one of most significant – the most famous – opinions from the Term when they clerked. Who, after all, would not want to own a copy of, say, District of Columbia v. Heller or Morrison v. Olson, signed by Justice Scalia himself?

My signed opinion is from the Court’s blockbuster decision in Conroy v. Aniskoff. Don’t recall that one? Well, for the Supreme Court attorneys reading this tribute (everyone else, please skip to the next paragraph), I’ll remind you that Conroy unanimously held Section 205 of the Soldiers’ and Sailors’ Civil Relief Act of 1940 means exactly what its unambiguous text provides – that a soldier’s period of military service shall not be included in computing any period for the redemption of real property that had been forfeited due to nonpayment of taxes.

For anyone who found the prior sentence so filled with impenetrable legalese that they eventually gave up trying to make heads or tails out of it, I’ll explain why I chose such a seemingly insignificant case and why that case taught me so much about Justice Scalia, his love for the law, and his irrepressible wit. The story starts with Justice Scalia’s inscription on the opinion, which begins: “To John Duffy – The hapless law clerk.”

Now, you might be thinking at this point that you have a pretty good idea why Justice Scalia used the adjective “hapless.” If Conroy was the opinion I most wanted signed, my judgment must be pretty poor, so perhaps the inscription reflected a year’s frustration with a clueless clerk. The opinions in Conroy tell a different story.

Despite the technical nature of the legal issue, the case itself is quite easy to understand. Thomas Conroy, an Army colonel, failed to pay several years of taxes on his real estate in Danforth, Maine. Not surprisingly, the city imposed a tax lien on the property. Maine, like many states, allows taxpayers a period of several months during which they can remove such a lien (or “redeem their property”) merely by paying the overdue taxes, plus interest and fees. By the time Conroy tried to settle his tax bill, however, that “redemption” period had apparently expired; the city had foreclosed on the lien; and the property had been sold to other parties.

Conroy sued the city on the theory that, under the federal Soldiers’ and Sailors’ Civil Relief Act, his redemption period could not expire while he was still in military service. The plain text of the statute seemed to support Colonel Conroy. It said that any period of military service was to be excluded in calculating the running of the redemption period – no if’s, and’s, or but’s! Nevertheless, the city argued that such an inflexible rule made little sense as applied to career members of the military, because the operation of tax laws could be delayed years or even decades for military officers with no excuse for untimely tending to their taxes.

In a different era, the Supreme Court might have been receptive to an argument that a statute should be creatively interpreted lest the apparently unambiguous language produce results thought unwise by the Justices. But in 1993 – over six years after Antonin Scalia became a Justice – the Court had taken a strong turn toward respecting statutory text. It was thus little surprise that the oral argument in the case was one-sided. The Court wanted an interpretation that respected the words Congress had written, and the city’s attorney could not offer one. So clear was the outcome that, although Conroy’s counsel had reserved three minutes to rebut the city’s arguments, he kept it short, stating: “Unless this Court has any questions, I would simply submit that the judgment [below] should be reversed.” The Colonel’s counsel knew the battle was won.

Justice John Paul Stevens’ opinion for the Court – joined by all members of the Court except Justice Scalia – began by stating that the statutory command was “unambiguous, unequivocal, and unlimited.” What’s not to like in that? For textualists like Justice Scalia, you might think that such a beginning would elicit a “you-had-me-at-hello.”

The problem was what came thereafter, as the majority opinion addressed the city’s argument that, at least in cases involving career military officers, the statute should not be interpreted as containing the inflexible mathematical rule that seemed to be encoded in the statute’s text. In rejecting that argument, Justice Stevens’s opinion tried to show that “the complete legislative history confirms a congressional intent to protect all military personnel on active duty, just as the statutory language provides.” That sentence was followed by a couple pages of cites and quotes to a few passages from the legislative record.

Perhaps most judges – even some committed textualists – might have viewed the discussion of legislative history as harmless given that outcome was clearly correct under the statute’s unambiguous language. Not Justice Scalia. For him, the Court’s opinion gave “a false and disruptive lesson in the law” because “[i]t says to the bar that even an ‘unambiguous [and] unequivocal’ statute can never be dispositive.”

Ever the teacher, Justice Scalia would not allow that false “lesson” to go unchallenged, even in a minor case with a unanimous result. Reliance on legislative history suffered not only from “illegitimacy” but also from “indeterminacy,” with the cacophony of legislators’ voices “more likely to confuse than to clarify.” And so he viewed the case as a good test of a famous metaphor drawn by Judge Harold Leventhal, who “used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”

As luck would have it, the relevant history in the case was a deep rabbit hole. The statute was first enacted during World War I, with a legislative record extending across two years. It was amended twice during World War II, with crucial language relevant to the case being added in 1942. For good measure, Congress amended the statute again in 1948. The legislative record also referred to many other materials, including judicial opinions from the first half of the twentieth century, state statutes dating back to the Civil War, and even foreign statutes. In sum, a complete legislative record covered a small mountain of books – enough to bury a law clerk’s desk.

Justice Scalia’s opinion painstakingly demonstrated that, in multiple places, the legislative history explicitly supported the argument that the statute was not intended to impose an “arbitrary, inelastic, inflexible” rule of the sort now being embraced by the Court and was instead meant to confer on judges “discretion” to dispense “even-handed justice.” If a court were to take legislative history seriously, Justice Scalia opined, it would certainly reject the result embraced by the majority. Indeed, the Justice observed, every prior lower court to investigate the legislative history had in fact reached the opposite result. And even the U.S. government, which appeared as an amicus in support of Colonel Conroy at the Supreme Court, had previously relied on the legislative history in urging lower courts to adopt the contrary result.

Yet none of that legislative history mattered to Justice Scalia, because the case ended (or should have ended) with the unambiguous statutory language. To emphasize that point, he wrote: “I confess that I have not personally investigated the entire legislative history – or even that portion of it which relates to the four statutes listed above. The excerpts I have examined and quoted were unearthed by a hapless law clerk to whom I assigned the task.”

References to Supreme Court law clerks in official opinions are so rare as to be nearly unheard of. Clerks, after all, should be completely invisible – neither seen nor heard to the outside world. But readers of Justice Scalia’s opinions know that his irrepressible wit often brought unexpected, humorous, and memorable turns of phrase into the otherwise staid volumes of the U.S. Reports. And, as is typical for Justice Scalia, his wit was harnessed here to prove a larger point – that judges and Justices should not be trying to parse “the entire legislative history” of statutes. It’s beneath them. It’s work hardly fit even for a hapless law clerk.

“Hapless” is of course a joke – each of Justice Scalia’s law clerks is extraordinarily fortunate to have spent a year with him. But it’s a joke to make serious point about the law, and it perfectly demonstrates Justice Scalia’s approach to judging. Even in the smallest cases, the Justice cared deeply about the “lesson” being taught by the work of the Court. He wanted to make sure the lessons were the right ones, and he didn’t balk at writing a detailed concurring opinion on a complex subject just to drive home a good lesson, even if that meant making a clerk a bit hapless.

I am pretty certain that most of Justice Scalia’s former law clerks have framed their inscribed opinions and now display them prominently in their homes or offices. So have I. My signed opinion hangs close to the door of my Law School office. I notice it frequently going in or out of the office, and I remember the humorous moniker, “the hapless law clerk.” The opinion reminds me not only of Justice Scalia’s creative wit but also of his unwavering commitment to principle. It is one of my most prized possessions.

Recommended Citation: John Duffy, Tribute: Justice Scalia’s hapless law clerk, SCOTUSblog (Mar. 6, 2016, 11:31 AM),