Jan 11, 2011

Posted in Uncategorized

Scalia, on the Canon Against Superfluity, cites International Law!

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Justice Scalia had this to say in his dissent in Ransom v. FIA Card Services on statutory interpretation:

The Court believes, however, that unless the IRS’s Collection Financial Standards are imported into the Local Standards, the word “applicable” would do no work,violating the principle that “‘we must give effect to every word of a statute wherever possible.’” Ante, at 8 (quoting Leocal v. Ashcroft, 543 U. S. 1, 12 (2004)). I disagree. The canon against superfluity is not a canon against verbosity.When a thought could have been expressed more con-cisely, one does not always have to cast about for someadditional meaning to the word or phrase that could havebeen dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase “‘in addition to and not in derogation of’” the last part adds nothing but emphasis. Davies v. Powell Duffryn Associated Collieries, Ltd., [1942] A. C. 601, 607.

Gasp! Did Justice Scalia just cite an opinion from the House of Lords? International Law?

Also, way to ruin Justice Kagan’s inaugural opinion, which has historically been unanimous. Last year Justice Thomas conccurred from Justice Sotomayor’s opinion. I suppose it’s a new tradition.

Update: I quote from Scalia’s dissent in Roper v. Simmons on the use of foreign law in 8th amendment cases:

Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own [American] heritage.” To the contrary, they are cited to set aside the centuries-old American practice–a practice still engaged in by a large majority of the relevant States–of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources “affirm,” rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. “Acknowledgment” of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment–which is surely what it parades as today.

I suppose his citation to the house of lords certainly does not constitute an “‘acknowledgement’ of foreign approval.” Rather, it would seem to be the basis of the Court’s judgment. I could quibble that this is a statutory, and not constitutional case, so perhaps different cases apply?

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