Monday, June 27, 2005
Nino: Picking and choosing his battles?
Now that the term is over, let's address a question separate from the merits of any case decided this year (or any year, for that matter): When does Justice Scalia note (by separate opinion or footnote by another judge) his refusal to concur in a reading of legislative history, and when does he not? This is an important question, because he is a man who is supposed to prize consistency as an intellectual virtue (e.g., his friendship with Justice Ginsburg is possible because he views her as consistently liberal; his lack of friendship with Justice O'Connor is based in part on her rampant inconsistency).
I believe that such statements emerged in OT'03. (Which is to say, that is when I first noticed them, and I didn't go back earlier to check.) Scalia, J., wrote separately in Intel Corp. v. Advanced Micro Devices, Inc. His refusal to concur with an examination of legislative history was noted by other Justices in fn. 7 in Doe v. Chao, and the first, starred footnote in Lamie v. United States Trustee.
In OT'04, the tactic is seen in KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. (starred footnote in Justice Souter's opinion) and Cherokee Nation of Okla. v. Leavitt (Scalia's separate opinion).
So when Scalia concurs in the majority's reading of a statute, he sometimes writes a "But I don't concur with dealing with legislative history" opinion and he sometimes asks another Justice to insert a "Justice Scalia does not concur in this part" footnote.
But not all the time. See, for example, Justice Kennedy's opinion in Exxon Mobil Corp. v. Allapattah Svcs., Inc., slip op. at 19-24, in which Scalia concurred without any piping up on his part.
I believe that such statements emerged in OT'03. (Which is to say, that is when I first noticed them, and I didn't go back earlier to check.) Scalia, J., wrote separately in Intel Corp. v. Advanced Micro Devices, Inc. His refusal to concur with an examination of legislative history was noted by other Justices in fn. 7 in Doe v. Chao, and the first, starred footnote in Lamie v. United States Trustee.
In OT'04, the tactic is seen in KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. (starred footnote in Justice Souter's opinion) and Cherokee Nation of Okla. v. Leavitt (Scalia's separate opinion).
So when Scalia concurs in the majority's reading of a statute, he sometimes writes a "But I don't concur with dealing with legislative history" opinion and he sometimes asks another Justice to insert a "Justice Scalia does not concur in this part" footnote.
But not all the time. See, for example, Justice Kennedy's opinion in Exxon Mobil Corp. v. Allapattah Svcs., Inc., slip op. at 19-24, in which Scalia concurred without any piping up on his part.
# posted by Anonymous : 7:12 PM
