SCOTUS Citations for Scalia & Garner’s “Reading Law”

June 30th, 2015

Justice Scalia and Bryan Garner’s magisterial “Reading Law” has been cited by the Supreme Court eight times since its publication in 2012: three times with Justice Scalia joining the opinion, and six times where Justice Scalia was not in the opinion. Justice Sotomayor has three citations, Justice Kennedy has two, and one each for the Chief, and Justices Alito and Kagan. None by Justices Scalia, Thomas, Ginsburg, or Breyer.

Opinions joined by Justice Scalia

Yates v. U.S. (2015) (Kagan, J., dissenting).

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 252 (2012). Context thus again confirms what text indicates.

T-Mobile South v. City of Roswell (2015) (Sotomayor, J.).

By relying on other parts of Title 47 of the U.S. Code—some enacted in the Communications Act of 1934 decades before the enactment of the Telecommunications Act of 1996 at issue here—the Chamber stretches to invoke this canon of construction beyond its most forceful application. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 172–173 (2012).

Heien v. North Carolina (2014) (Roberts, J.).

A law prohibiting “vehicles” in the park either covers Segways or not, see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36–38 (2012), but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by.

Opinions not joined by Justice Scalia

Texas Dept. of Housing (2015) (Kennedy, J.)

“If a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012).

Johnson v. U.S. (2015) (Alito, J., dissenting)

As one treatise puts it, “[a] statute should be interpreted in a way that avoids placing its constitutionality in doubt.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts § 38, p. 247 (2012). This canon applies fully when considering vagueness challenges.

(Here, Scalia wrote the majority opinion, so Alito is jabbing Nino).

Department of Homeland Security v. MacLean (2015) (Sotomayor, J., dissenting).

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 114 (2012) (“[W]hen the word shall can reasonably read as mandatory, it ought to be so read”).

Scialabba v. Cuella de Osorio (2014) (Sotomayor, J., dissenting).

In rushing to find a conflict within the statute, the plurality neglects a fundamental tenet of statutory interpretation: We do not lightly presume that Congress has legislated in self-contradicting terms. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory…. [T]here can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously”). That is especially true where, as here, the conflict that Congress supposedly created is not between two different statutes or even two separate provisions within a single statute, but between two clauses in the same sentence. See ibid. (“[I]t is invariably true that intelligent drafters do not contradict themselves”).

Maracich v. Spears (2013) (Kennedy, J.).

That inconsistency and the concomitant undermining of the statutory design are avoided by interpreting (b)(4) so it does not authorize the use of personal information for the purpose of soliciting clients. See A. Scalia & B.Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory…. [T]here can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously”).

At one point during oral argument in King v. Burwell, Solicitor General Donald Verrilli referred to a “learned treatise.”

Your Honor raised this point about the need for clarity in ­­ in a tax deduction and IRS in the  statutory reading of tax deductions, there is a learned treatise that describes that as a false notion.

It was Scalia and Garner’s Reading Law.