Justice Scalia still hating on legislative history in DePierre v. United States

June 9th, 2011

DePierre v. United States, was a unanimous opinion, except for Part III-A, which Justice Scalia did not join. Part III-A relied on legislative history to consture the relevant statutory provision. As per his custom, Justice Scalia would not deign to join this surplusage.

I concur in the Court’s judgment and in all of its opinion except for Part III–A, which needlessly contradicts De-Pierre’s version of legislative history. Our holding todayis that the statutory term “cocaine base” refers to cocainebase, rather than, as DePierre contends, one particular type of cocaine base. This holding is in my view obvious,and the Court does not disagree. It begins its discussion of the legislative history by saying that DePierre’s position“is not supported by the statutory text,” ante, at 13; and ends the discussion by saying that “[i]n the absence of any indication in the statutory text that Congress intended only to subject crack cocaine offenses to enhanced penal-ties, we cannot adopt DePierre’s narrow construction,” ante, at 15.

Everything in-between could and should have beenomitted. Even if Dr. Byck had not lectured an unde-termined number of likely somnolent Congressmen on “the damaging effects of cocaine smoking on people in Peru,” ante, at 14, we would still hold that the words “cocaine base” mean cocaine base. And here, as always, the need-less detour into legislative history is not harmless. It con-veys the mistaken impression that legislative history could modify the text of a criminal statute as clear as this. In fact, however, even a hypothetical House Report ex-pressing the Committee’s misunderstanding (or perhaps just the Committee staff’s misunderstanding, who knows?) that “cocaine base means crack cocaine” could not have changed the outcome of today’s opinion.