Without Scalia, Legislative History Cited Without Dissent on #SCOTUS

June 13th, 2016

One of my favorite Scaliaisms was his insistence on dissenting from any citations to legislative history. Even if the opinion was unanimous, you could expect a footnote that Nino did not concur with the reference to the Congressional Record. He insisted that this nudged his colleagues away from citing legislative history. With Scalia’s absence, this is no longer the case.

As I was reading the Court’s unanimous decision in United States v. Bryant, I jumped when I came across this sentence:

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” 151 Cong. Rec. 9061 (2005) (remarks of Sen. McCain).

I found myself thinking, who the hell cares what John McCain thought. Alas, there was no Scalia dissent to point out that what the Arizonan said on the Senate floor (not even a report!) is utterly and entirely irrelevant to statutory interpretation. Nor will there be going forward. To the extent that Scalia’s dissenting-practice nudged other Justices towards excluding legislative history (dubious), the Eight will now be emboldened to dive deeper into legislative history. His absence is already being felt in subtle ways.

I’ve checked other #SCOTUS decisions that cite the Congressional Record since Justice Scalia’s passing. Justice Thomas referenced it in the majority opinion in Nebraska v. Parker, but he was referring to citations in the Petitioners’s brief. RBG cited it in her concurring opinion in Spokeo and her dissent in Gobeille. So, if my research is correct, Bryant is the first unanimous Scalia-less majority decision that cites legislative history without a dissent.