I can’t help but think this exchange from Genesis HealthCare Corp. v. Symczyk (11-1059) was a gentle jab at Justice Scalia by Justice Breyer. Nino was smiling while SGB was saying something about canons in 18th Century Westminster courts.
JUSTICE BREYER: Oh, we know at least, since we are doing — I looked up a little bit, but Article III is what was a case or controversy in Westminster in 1788 or 1750 or whenever, that in Westminster, in a court of equity, I found at least two instances, a person dies, there is no case with that person, but it remained in equity on the docket until the other person, the estate, came in. A woman could not bring a case if she was married. She starts as a single person. She gets married. Lo and behold, the case remains on the docket until her husband comes in. That’s not a happy example, but nonetheless it’s in point. Now, I could find nothing the other way, so I thought of the canon of interpretation that equity deems to have been done what ought to have been done, or something like that. Others on the Court — but the - the point is that there are instances -
Now the transcript did not notate, but at the same moment Scalia interrupted Breyer, there was totally laughter.
JUSTICE SCALIA: Equity is wonderful.
JUSTICE BREYER: What? Yes. It remained on the docket in the Westminster courts, even though there was no plaintiff.
Update: My colleague John Bauman reminds me that this is a maxim of equity, not a canon of statutory interpretation.