"The Greatest Justices" List

[Mark Tushnet]

Tom Grey refers to "an article by Tom Merrill that shows how [Scalia]
has (single-handedly, before being joined by Justice Thomas) virtually
driven legislative history out of the opinions of the Court."  My
impression, though I don't have statistics on it, is that Scalia's
effort has been a failure, to the point where he now routinely issues a
separate statement disclaiming the passages in the Court's opinion
relying on legislative history or, as in Crosby, a separate opinion
focusing on the Court's "improper" use of legislative history.  I found
it striking that the Crosby opinion simply ignores Scalia's concerns --
not a word about them in the opinion.
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