Scalia, Great Justices, and legislative history

[Leslie Goldstein]

for those of you who are interested in further empirical analysis of
Scalia's impact in this area, I can recommend the PhD dissertation in
political science of Ruth Watry at the U of Delaware in 2000.  It should
be available on interlibrary loan.  She tested a number of hypotheses
but she did not test (and I do not know how one would test, apart from
by interviewing (which might be unreliable)congressional staff , the
hypothesis that Cogress drafts more carefully than it used to .  BTW I
am pretty sceptical of this assertion, since so much is still getting
doen by exec order, as Cong continues to hide from political heat.
Leslie Goldstein
Philip Frickey wrote:
>
> 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 law.stanford.edu