Scalia: “I wrote it. I don’t think that’s what I meant.”

December 9th, 2013

What happens when a lawyer tells the Court what a 1988 opinion, authored by Justice Scalia means?

What we would say in response to that is that what Budinich meant by that language is that its rule does not apply to a case where the attorneys’ fees are for a prior case, as opposed to being attributable to the case, meaning the case in which the fees are incurred. So if you have a dispute between a lawyer and a prior, a former client, over fees, the former client hasn’t paid fees and there’s a lawsuit to recover the fees, Budinich won’t apply in that situation.

JUSTICE SCALIA: I wrote it. I don’t think that’s what I meant.


Should it matter what the author thought when writing it? Shouldn’t we judge it (gasp) by the plain text of the opinion, and not the intent of its drafter? I hear decision-making on the Court, especially in unanimous opinions, is like sausage-making.

From the Court inĀ Budinich v. Becton Dickinson, only Justice Scala and Kennedy remain.