In Lawson v. FMR LLC Justice Scalia concurred in the judgment of Justice Ginsburg’s majority opinion, but only concurred “in principal.” Here is how the opinion begins:
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in principal part and concurring in the judgment.
I agree with the Court’s conclusion that 18 U.S.C. §1514A protects employees of private contractors from retaliation when they report covered forms of fraud. As the Court carefully demonstrates, that conclusion logically flows from §1514A’s text and broader context. I therefore join the Court’s opinion in principal part.
Scalia travels over the well-trodden ground about why legislative history is not reliable.
I do not endorse, however, the Court’s occasional excursions beyond the interpretative terra firma of text and context, into the swamps of legislative history. Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not. Because we are a govern- ment of laws, not of men, and are governed by what Congress enacted rather than by what it intended, the sole object of the interpretative enterprise is to determine what a law says. Second: That there was a congressional “in- tent” apart from that reflected in the enacted text. On most issues of detail that come before this Court, I am confident that the majority of Senators and Representa- tives had no views whatever on how the issues should be resolved—indeed, were unaware of the issues entirely. Third: That the views expressed in a committee report or a floor statement represent those of all the Members of that House. Many of them almost certainly did not read the report or hear the statement, much less agree with it—not to mention the Members of the other House and the Presi- dent who signed the bill.
Next Scalia credits the majority with “poetic license” for citing favorable parts of the record, but ignorable unfavorable parts.
It cites parts of the legislative record that are consistent with its holding that §1514A covers employees of private contractors and subcontrac- tors, but it ignores other parts that unequivocally cut in the opposite direction. For example, the following remark by the Sarbanes-Oxley Act’s lead sponsor in the Senate: “[L]et me make very clear that [the Act] applies exclusively to public companies—that is, to companies registered with the Securities and Exchange Commission. It is not applicable to pr[i]v[at]e companies,[*] who make up the vast majority of companies across the country.” 148 Cong. Rec. 14440 (2002) (remarks of Sen. Sarbanes).