Justice Scalia

Composed and posted on February 16, 2016

I do not profess to be a legal scholar, but in listening to those who profess to be such I hear the refrain that Scalia was brilliant and that one of the areas of his brilliance was his scorn for the use of legislative history in deciding cases.  As early as 1996, he had blazed a trail against the use of legislative history and a Fall 1996 Marquette Law Review article notes:

The validity of the use of legislative history has been debated for a number of years, but never has it received the high level of attention it does today. While the use of legislative history has waxed and waned, never has the institution of legislative history undergone such a direct assault as is being witnessed today in the U.S. Supreme Court. Led by Justice Scalia, judges and academics are questioning the value of this old tool for interpreting statutes. Such criticism is crystallizing into a coherent front of opposition. While legislative history can take many different forms, there are two main types upon which courts rely. First, judges often either review "statements" made by legislators in reports issued by committees on pieces of legislation, or review actual statements made on the assembly or senate floor. Committee reports are meant to represent the consensus view of a committee or legislature. Actual statements made by legislators during debate can be persuasive if that individual played a key role in developing the legislation. The second main type of legislative history referenced by judges is past drafts of bills or the sequence of development of legislation. Bills can go through numerous revisions where certain terms or ideas are either developed or eliminated. Judges will point to these alterations as proof of a legislature's intentions. Judges have gone beyond these two main types to find "legislative history" in almost any occurrence connected to a bill.' Many judges have grown so dependent on legislative history that one Supreme Court Justice remarked that because the legislative history was ambiguous, "it is clear that we must look primarily to the statutes themselves to find the legislative intent," rather than the other way around. The use of legislative history has been criticized for a variety of reasons. Critics claim legislative history lacks legitimacy because it was never voted on by a legislature or signed into law by an executive. Instead, legislative history exists in the form of committee reports written primarily by staff and read by few, if any, legislators. The "intent" which judges find in these reports may have existed, but critics claim that in many cases there was no collective intent to form the meaning assumed to be evidenced in committee reports. Critics also charge that legislative history is indeterminate, and, therefore, subject to many possible interpretations. Because a bill involves the blending of many competing interests, there is often a variety of statements or drafts covering a particular issue that could be referenced by a judge as evidence of any number of views or trends, even when no such particular view or trend actually existed. The third major criticism of legislative history is that it is easy to manipulate, both in its creation and in its interpretation. Committee reports are primarily written by legislative staff.  These staff members are in close contact with lobbyists who can provide "advice" in the form of language to be added to final reports, language which no legislator has seen. This objection to the use of legislative history (manipulation by legislative staff) is different than the first objection (illegitimacy) that finds fault with legislative history created by staff members even with the best intentions. Manipulation can also occur when judges review past legislative history. One can weave together a variety of unrelated statements to form a coherent legislative intent where none really existed. This manipulation can be intentional or unintentional when stemming from the judge's natural biases. This objection is fundamentally different from the indeterminacy problem where judges with the best intentions simply cannot find an accurate statement of the legislature's intent. The consideration of legislative history is more important than ever as our legal system is flooded with a rising number of cases involving statutory interpretation. As legislatures pass laws which are increasingly complicated, courts are forced to deal with more complicated questions of statutory interpretation. Legislative history can help clarify how statutes were intended to operate and interact. Its use and misuse will continue to be a central issue in judicial decisions. In the midst of these developments, Justice Scalia was appointed to the Supreme Court. While Justice Scalia had criticized the use of legislative history during his term on the D.C. Circuit Court, he greatly expanded his attacks once he was free of a higher reviewing court. His recent opinions have set the tone of the legislative history debate. 

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By speaking out on the issue in 1987 and acting accordingly once he joined the Court, Justice Scalia sparked the resurgence of the plain meaning rule and the rejection of the use of legislative history. After joining the Supreme Court he set a pattern of refusing to join in opinions which relied upon legislative history, instead choosing to write his own concurrences. Distrustful of legislative history, Justice Scalia borrowed the metaphor of Judge Harold Levanthal to describe the use of legislative history as "[t]he equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends."'" Justice Scalia has been joined by Justice Thomas, and to a great degree Justice Kennedy, in a general rejection of the use of legislative history. Chief Justice Rehnquist and Justice O'Connor frequently join Justice Scalia's opinions, but seldom rely on his approach in their own opinions. The remaining four justices welcome the use of legislative history. Justice Scalia has not written a definitive exposition on his views of legislative history, but he has presented many pieces of his views in various Supreme Court decisions. He finds a number of problems with using legislative history. First, legislative history lacks legitimacy as it is not the law itself." Second, even if legislative history were legitimate, it is often prohibitively difficult to find a single true legislative intent by studying the records. Finally, even if one could find such an intent, legislative history is easily susceptible to manipulation by staff and lobbyists, and therefore it is untrustworthy.  According to Justice Scalia, the biggest problem with legislative  history remains its lack of legitimacy.' Scalia said it clearly in Conroy v. Aniskoff, "[t]he greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislatures."" It is the language of the statute itself which is the law. "Judges interpret laws rather than reconstruct legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent."' Justice Scalia finds judges too often go beyond what is in the statute and ultimately enact the legislative history into law. The problem is that legislative history has neither been debated nor voted on by the legislature nor signed into law by the executive. Scalia agrees that the Court should enforce the intentions of the legislature, but he disagrees over what should be done to enact those intentions. In Pennsylvania v. Union Gas Co., Scalia stated: It is our task, as I see it, not to enter the minds of the Members of Congress-who need have nothing in mind in order for their votes to be both lawful and effective-but rather to give fair and reasonable meaning to the text of the United States Code, adopted by various Congresses at various times. To give credence to the statements of individual legislators circumvents the entire legislative process: "An enactment by implication cannot realistically be regarded as the product of the difficult lawmaking process our Constitution has prescribed. Committee reports, floor speeches, and even colloquies between Congressmen... are frail substitutes for bicameral votes upon the text of a law and its presentment to the President."'

Peace,

Everett "Skip" Jenkins

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M...

I agree with you analogy to the devil. But  M... what was the evidence of brilliance? I am not an attorney so there must be some professional criterion. Some of his public statements were boorish and not very well expressed. Why is it said that he was bright?

T...

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T...

Unfortunately, Scalia was bright.  So is the Devil.

M...

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U...,

 What are they talking about when they speak of Scalia's intellect? I didn't see much evidence of it. "Get over it"  was his answer when asked about his shameless decision in Bush vs. Gore that violated the court's  notion of the primacy of state's rights. "Get over it" was typical Scalia, boorish, crude, lacking in intellectual content, contemptuous and bordering on vulgarity. His indifference toward the disenfranchisement of African Americans in Florida in 2000 is evidence of his disregard for basic justice. I just don't see the evidence of "brilliance". I do see a judge who when it came to voting rights hypocritically got the court involved in legislative issues and politicized it when he said he would be against politicization. I think he died of an overload  of mean spiritedness and might have been approaching a state of dementia. I wonder why there was no autopsy? Was he a drug addict perhaps to prescription drugs? Maybe he took too much of the pain medicine he was given. 

http://nypost.com/2016/02/15/detectives-question-lack-of-autopsy-in-scalia-death/


Keep the faith,

T...