Scalia is really hating on legislative history today, but praises “assiduous law-clerk research”

June 1st, 2010

In two opinions today, following his practice of late, Justice Scalia goes out of his way to write separately to reject the use of legislative history. Although he does praise the “demonstration of assiduous law-clerk research.”

In United States v. Carr:

I join the Court’s opinion except for Part III–C. I do not join that part because only the text Congress voted on, andnot unapproved statements made or comments written during its drafting and enactment process, is an authori-tative indicator of the law. But even if those preenact-ment materials were relevant, it would be unnecessary toaddress them here. The Court’s thorough discussion oftext, context, and structure, ante, at 5–17, demonstrates that the meaning of 18 U. S. C. §2250(a) is plain. As the Court acknowledges, ante, at 18, but does not heed, we must not say more:

“We have stated time and again that courts must pre-sume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” Connecticut Nat. Bank v. Germain, 503

U. S. 249, 253–254 (1992) (citations and internal quo-tation marks omitted).

In Samantar v. Yousuf:

Yet the Court insists on adding legislative history to its analysis. I could understand that (though not agree with it) if, in the absence of supposed legislative-historysupport, the Court would reach a different result. Or even if there was something in the legislative history thatclearly contradicted the Court’s result, and had to be explained away. That is not the situation here (or at least the Court’s opinion does not think it to be so). The Court assures us, however (if this could be thought assurance), that legislative history is “‘not generally so misleading’” that it should “‘never’” be used. Ante, at 10, n. 9 (quoting Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 611–612, n. 4 (1991)). Surely that is damning by faint praise. And the Court’s mention of the past practice ofusing legislative history, ante, at 10, n. 9, does not support the Court’s use of it today. The past practice was “not the practice of using legislative history for the purpose ofgiving authoritative content to the meaning of a statutorytext,” Mortier, supra, at 622 (SCALIA, J., concurring in judgment).

The Court’s introduction of legislative history serves nopurpose except needlessly to inject into the opinion a mode of analysis that not all of the Justices consider valid. And it does so, to boot, in a fashion that does not isolate the superfluous legislative history in a section that those of uswho disagree categorically with its use, or at least dis-agree with its superfluous use, can decline to join. I there-fore do not join the opinion, and concur only in the result.
To make matters worse, the Court itself notes this statutory declaration of purpose twice earlier, in the body of its opinion, see ante, at 6, 13. If those textual references to the statute itself were deleted, the footnoted citation of legislative history would at least perform some function. As it is, however, it adds nothingexcept the demonstration of assiduous law-clerk research.
It should be no cause for wonder that, upon carefulexamination, all of the opinion’s excerpts from legislative history turn out to be, at best, nonprobative or entirely duplicative of text. After all, legislative history is almost never the real reason for the Court’s decision—and make-weights do not deserve a lot of the Court’s time.