Scalia, Great Justices, and legislative history

Philip Frickey frickey at MAIL.LAW.BERKELEY.EDU
Thu Mar 8 08:13:05 PST 2001

As for the question about Scalia's influence on the Court's approach to
statutory interpretation, the majority of the Court continues to maintain that
legislative history may be consulted, see, e.g., Wisconin Public Intervenor v.
Mortier, 501 U.S. 597, 610 n.4 (1991).  I think the most interesting piece of
Tom Merrill's analysis was not the decline in the citation to legislative
history (which was also documented by others in the early 1990's), but his
perspective on the strategic reasons why legislative history has declined in
citation.  Essentially, if the vote in the case is close and the Justice
writing the majority opinions needs Scalia and/or Thomas to keep a majority,
there is every incentive to write the opinion without any reliance on
legislative history even if the writing Justice would be perfectly happy to
rely on legislative history ordinarily.  Even if one or both votes are not
needed, the writing Justice might decide to forego citation to the legislative
history to avoid the inevitable separate opinion from one or both complaining
about the citation, trying to demonstrate that the legislative history is
completely indeterminate or perhaps even supports a contrary result, and so on,
which just makes more work for the writing Justice who feels he/she must
respond to this.  So the appearance of the avoidance of legislative history
probably is greater than the reality of it.

On balance, I think that Scalia has, more or less single-handedly, changed the
dynamic on how briefs in statutory cases are written and advocates prepare for
oral argument:  the smart advocate makes her case based on statutory text,
established canons of statutory interpretation, and statutory purposes, and
then argues that there is no need to consult legislative history, but if one
does, we win anyway because . . . .  (In other words, you cover all the bases,
but order the hierarchy and emphasis differently.)  Now, with that said, I find
it hard to believe that all that many cases are actually decided differently
under this regime than the old one -- perhaps only when Scalia and Thomas are
swing votes will the methodology perhaps contribute substantially to the
result, and only in cases in which the legislative history by itself would
swing a case one way rather than the other for some other Justices.  In
addition, I suppose there is the occasional case in which the formalist sources
(text, canons) are really strong and the now-Scalia-educated conservative
Justices are now more sympathetic to those arguments than before and less
willing to be pulled away by legislative history or other arguments.  An
example might be West Virginia Univ. Hospitals v. Casey, 499 U.S. 83 (1991), a
Scalia opinion in which the majority holds that 42 U.S.C. section 1988's award
of "attorney's fees" to prevailing plaintiffs does not include shifting of
"expert fees" because throughout the U.S. Code many statutes differentiate the
term "attorney's fee" from the term "expert [and other] fees."  The Stevens
dissent in Casey is quite persuasive that Congress does not draft far-flung
provisions, adopted at different times, with a "whole code" mentality, and that
the purposes of fee-shifting and the presumed intentions of Congress fully
support awarding expert fees as well as attorney's fees.

Anyway, aside from the inside baseball on statutory interpretation, I think a
case can be made that Scalia has changed statutory interpretation advocacy and
opinion form in a fundamental way -- but has probably not caused a change in
the results in many cases.  It has also left the lower federal courts at sea on
what they are supposed to consider in interpreting a statute.  How that
contributes, if at all, to measuring a "Great Justice" I leave to others.

Phil Frickey

Tom Grey wrote:

> The article I had in mind is Thomas W. Merrill, Textualism and the Future
> of the Chevron Doctrine, 72 Wash. U. L. Q. 351 (1994).
> See p. 356: "The sixty-six statutory interpretation cases I identified in
>    the last Term [1992] reveal that what was at most an emerging trend in
> 1988 has become a major transformation. In over
>    forty decisions, there is no reference to legislative history by any of
> the participating Justices. Indeed, adopting
>    even the most generous construction ... only thirteen decisions from the
>    1992 Term can be said to include any "substantive use" of legislative
> history by the majority or plurality opinion. In
>    short, in slightly more than a decade the Court has moved from a
> position in which legislative history was routinely
>    considered in all cases, to a situation in which it is considered by the
> controlling opinion in only a small minority of
>    decisions. And in most cases, it is not mentioned at all."
> The situation may have reversed itself since 1992.
> >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.
> -- Tom Grey     Stanford Law School    tgrey at

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