Even Breyer Draws a Line on the use of Legislative History

November 9th, 2010

In Costco v. Omega, Justice Breyer and Justice Scalia bantered back and forth a bit on the use of legislative history. Curiously, in this case both Justices agreed that reliance on legislative history was inappropriate.

Justice Scalia hammered Petitioner about the use of legislative history:

JUSTICE SCALIA: Where do you get that in the text? I mean, that’s lovely, and you’re saying that what Justice Breyer suggests makes perfect sense except for dictum and legislative history. Does your position make any sense with regard to text?

JUSTICE¬†SCALIA: I’m talking about your your limitation on exclusive rights abroad versus nonexclusive rights abroad. Where can you possibly find that in the text?

MR. ENGLERT: You cannot.

JUSTICE SCALIA: Oh. Well, that’s the end of it for me.

Justice Breyer did not even see it in the history:

JUSTICE¬†BREYER: I have to say, I didn’t even see it in the legislative history. I didn’t think they made a big deal about jobbers. I like history here. Go back to 1792.

JUSTICE BREYER: I do read legislative history, but I didn’t really find anything that said that they were worried about an American and a British publisher dividing rights, and they want them to do that.

Breyer was also not willing to consider statements made by witnesses, rather than committee members, noting that he draws the line somewhere. Justice Scalia couldn’t help but note the momentous occasion when the father of active liberty cools on legislative history.

MR. ENGLERT: And Justice Breyer, to be fair about what the legislative history says, it is statements by witnesses. It is not statements by committee, so it’s a little bit hard to tell where they’re drawing the line.
JUSTICE BREYER: Oh. In other words, somebody wanted that. I understand the industry wanted it. But — but I — is there anything in there that suggests that this is what Congress wanted to do, members of Congress? Even I draw the line somewhere.
(Laughter.)
MR. ENGLERT: Yes. Yes.
JUSTICE SCALIA: Let me write that down.
(Laughter.)