Just attended oral arguments for Costco v. Omega. Some tentative initial thoughts. With Justice Kagan recused, this will likely be an 8-0 affirmance. The Justices did not seem to buy Petitoner’s arguments, which was based primarily on a reading of legislative history and a dictum in a case.

Needless to say, Justice Scalia was not impressed with this non-textual argument. After petitoner conceded his argument was based on legislative history, Scalia said “that’s the end of it for me.” (I pictured Porky Pig saying “that’s all folks!”) Scalia then commented that there is “nothing in the text that supports your position.” Petitioner conceded that for those that do not consider legislative history, that argument may not hold up.

Oddly enough, Justice Breyer, the champion of purpose and legislative history became a textualist today. (During the second argument in Mayo Foundation, Justice Breyer found himself consulting a dictionary!) To Breyer,  that argument did not hold of up for him. He was skeptical of reliance on statements made by witnesses, and not committee members, in the legislative history. “Even I draw the line somewhere,” Breyer quipped. Scalia, retorted “let me write that down.”

The Justices asked the Respondent, and United States, a number of questions about their interpretation. While it was also based on legislative history, both Breyer and Scalia seemed to have fewer objections.