Justice Scalia doesn’t think Congress Reads Judge Edwards (or legislative history for that matter)

February 28th, 2012

From oral argument in 11-88. Mohamad v. Palestinian Authority:

JUSTICE SCALIA: Wait. Congress got it from Judge Edwards. Gee, my goodness.
MR. FISHER: I think, Justice Scalia, I think –

JUSTICE SCALIA: I will bet you none of them — none of them even read that opinion.

MR. FISHER: Well, I think Judge Edwards’ opinion was quite prominently read by the Congress then. It is cited throughout the legislative history in the Senate Report, in the House Report, again and again in the hearings.

And this Court I think in Skilling, a couple terms ago, this Court said we have a statute before us dealing with honest services. And what did Congress mean when it used particular language. Well, it probably meant what lower court judges had used that language to mean.
JUSTICE SCALIA: That is a strange phrase, honest services, as, you know, as a crime, deprivation — deprivation of honest services. But the word “individual” is not a strange word at all. It’s used all the time.
MR. FISHER: Well, no, Justice Scalia -JUSTICE
SCALIA: It means an individual.

And when Breyer starts talking about legislative history, you know Nino will pipe in:

JUSTICE BREYER: Well, then I looked at — I have looked at — I know I have to go through legislative history. I’ve said it is meaningful and so I do it. And so far — so far, I think I have to say that you are on a weak wicket.

A weak wicket. Sounds like something from Harry Potter.

JUSTICE SCALIA: Suppose I am a member of the House or of the Senate. And I am not a member of the committee that engages in all of this legislative history. And I — I see the word individual in this statute. And that’s the basis on which I vote for or against the statute. Why should I be saddled with whatever sayings by members of the committee or by experts testifying before the committee occurred? It was out of my hearing. I voted for individual. And individual — well — if Congress wanted individual to mean what you say it doesn’t mean, what word would they have used instead? I mean, if individual is a code word for person, what’s the code person for individual?