May 16, 2011

Posted in Uncategorized

The Scalia-Breyer Volley Continues: “Rather than attempting to read the District Judge’s palm, I would simply remand.”

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I’ll admit, I don’t know the first thing about ERISA, but this line in Justice Scalia’s concurring in judgment opinion in CIGNA Corp. v. Amara was quite good. Basically, Scalia, joined by Thomas, would have only decided the issue in the district court opinion. Justice Breyer’s majority opinion went further. Scalia would rather not go that far. He chides Breyer for trying to divine the thoughts of what legislators would do, and rips him for doing the same for judges:

I find no such implication whatever—not even a weak one. The District Court simply said that §502(a)(1)(B) providedrelief, and that under our cases §502(a)(3) might not do so. While some Members of this Court have sought to divine what legislators would have prescribed beyond what they did prescribe, none to my knowledge has hitherto sought to guess what district judges would have decided beyond what they did decide. And this, bear in mind, is not just a guess as to what the District Court would have done if ithad known that its §502(a)(1)(B) relief was (as we today hold) improper.

Why the Court embarks on this peculiar path is beyond me. It cannot even be explained by an eagerness to demonstrate—by blatant dictum, if necessary—that, by George, plan members misled by an SPD will be compensated.

Rather than attempting to read the District Judge’spalm, I would simply remand.

Yet another volley between Justice Scalia and Justice Breyer.

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