Scalia and Alito Clash in Ruling

I must be really predictable in what I write about. For the second time this week, someone emailed me a link to an article that I already had open on my screen with the intention of writing about. This time it was Josh Claybourn of In the Agora (and a belated congratulations to Josh on his graduation from law school) and the article was this one from Orin Kerr discussing a recent ruling that found Justice Scalia and Justice Alito slightly at odds with one another. The case is Zedner v United States and it involved the Speedy Trial Act. Kerr writes:

For court watchers who aren't into the Speedy Trial Act -- that is, most readers of this blog -- Zedner is probably most interesting for the fact that Justice Alito included a section on legislative history and Justice Scalia filed a concurrence objecting to that section and refusing to join it. Or, perhaps more to the point, the opinion is interesting because Alito wanted to keep the discussion of legislative history in his opinion, and declined to accomodate Justice Scalia's request to take it out.

What can we read into that? It's hard to say. Alito wasn't a hard-core textualist as a circuit judge. My own read on his circuit court opinions is that while Alito believes in the primacy of text and is aware of the potential for abuse in reliance on legislative history, he isn't one to feel the need to safeguard against that abuse by never relying on legislative history regardless of the context. And in the Zedner case, Alito's reliance on legislative history is pretty harmless: the commitee reports from 1974 and 1979 confirm the Court's take the statutory structure.

Alito's use of legislative history may surprise those who were expecting him to be a Scalia clone. But as I and others have been saying for a long time, Alito isn't a Scalia clone.

Quite right. During the confirmation hearings for both Alito and Roberts, I made the point that neither one was a Scalia clone. They are both certainly conservative, but they do not pretend to have a single overarching mode of interpretation, as Scalia does (and I use the word "pretend" quite intentionally). I've never quite understood Scalia's often stated opposition to using legislative history to aid in statutory interpretation. As Kerr notes, there is potential for abuse in referring to the legislative history, but that's no reason to rule it out in all cases.

And as I've noted before, Scalia himself does not rule it out in all cases. in Edwards v Aguillard, the 1987 case that ruled creation science out of public school science classrooms, he in fact complained that the majority did not accept the statements of intent from the legislators during debate on the Act. Such statements of intent are obviously a part of the legislative history of the bill. Thus, like his invocations of originalism and textualism, Scalia only takes a consistent position when it leads to the outcome he likes; when it does not, he'll pick a different rule of interpretation that does - ironically, the very thing he so often and loudly accuses his opponents of doing.


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I really just wanted to show Nino that I'm not going to do what he says just because he's been here longer. I'm not wedded to the legislative history angle, and if he had asked politely I might have changed it to let him concur. But really is sort of a pain in the ass about these things. And he argues line calls in squash like Johnny Mac. I am pretty surprised.

I've had the impression for some time that Scalia doesn't much bother with legal reasoning of any sort. Not sure where that feeling comes from...maybe his idiotic ravings about the "gay agenda?" Or his willingness to ignore any law that hinders the Sacred War on Drugs and the Old Sick People Who Use Them?