Wednesday, March 17, 2010

Justice Scalia's Textualism on Display

Justice Scalia's commitment to a strict textualist approach to statutory interpretation was on full display in his concurrence in a recent U.S. Supreme Court decision construing the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Scalia joined Justice Sotomayor's majority opinion in Milavetz, Gallop & Milavetz v. United States -- except for one footnote, in which Sotomayor cited a House Report and hearing testimony despite noting that "reliance on legislative history is unnecessary in light of the statute’s unambiguous language." Scalia summarized his oft-repeated objections to the use of committee reports as follows:
Such statements tell us nothing about what the statute means, since (1) we do not know that the members of the Committee read the Report, (2) it is almost certain that they did not vote on the Report (that is not the practice), and (3) even if they did read and vote on it, they were not, after all, those who made this law. . . . Even indulging the extravagant assumption that Members of the House other than members of its Committee on the Judiciary read the Report (and the further extravagant assumption that they agreed with it), the Members of the Senate could not possibly have read it, since it did not exist when the Senate passed the [bill]. And the President surely had more important things to do.

Scalia then invoked the principle that, if the statutory language is clear, there is no reason to go beyond it -- and there may be good reasons for not doing so:
Our cases have said that legislative history is irrelevant when the statutory text is clear. See, e.g., United States v. Gonzales, 520 U. S. 1, 6 (1997); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 254 (1992). The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients’ treasure combing the annals of legislative history in all cases: To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say.

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