Uses of Legislative History: Scalia v. Alito

Today the Supreme Court held unanimously in Zedner v. United States that a defendant may not prospectively waive the application of the Speedy Trial Act and, therefore, a defendant’s agreement to waive the Act’s protections “for all time” in his pending criminal case was ineffective. Justice Alito wrote the majority opinion in which he reasoned that the language and purposes of the Speedy Trial Act led to the conclusion that the Act did not permit prospective waivers and that this conclusion was supported by the Act’s legislative history. Justice Scalia wrote the single concurring opinion, joining the majority opinion except for it’s use of legislative history.

Sharply criticizing Alito’s reliance on legislative history, Scalia wrote:

I believe that the only language that constitutes “a Law” within the meaning of the Bicameralism and Presentment Clause of Article I, §7, and hence the only language adopted in a fashion that entitles it to our attention, is the text of the enacted statute. . . .

It may seem that there is no harm in using committee reports and other such sources when they are merely in accord with the plain meaning of the Act. But this sort of intellectual piling-on has addictive consequences. To begin with, it accustoms us to believing that what is said by a single person in a floor debate or by a committee report represents the view of Congress as a whole—so that we sometimes even will say (when referring to a floor statement and committee report) that “Congress has expressed” thus-and-so. . . . There is no basis either in law or in reality for this naive belief. Moreover, if legislative history is relevant when it confirms the plain meaning of the statutory text, it should also be relevant when it contradicts the plain meaning, thus rendering what is plain ambiguous. Because the use of legislative history is illegitimate and ill advised in the interpretation of any statute—and especially a statute that is clear on its face—I do not join this portion of the Court’s opinion.

Given that the decision is 9-0, it’s hard to read it as early evidence of a large difference between Scalia and Alito. For that, we’d need a case in which Alito uses legislative history to buttress a statutory interpreptation with which Scalia does not otherwise agree.

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3 Responses

  1. Simon says:

    I tend to think that the difference is a gulf, regardless of the result. An invalid process is invalid even if it reaches the right result. I have to admit that, as much as I scoffed at those who, when Alito’s first action on the court was to grant a stay (“get with it!,” I laughed – “this is a lifetime appointment and you want to write it off after a day”), today, I have at very least a touch of buyer’s remorse, even if I’m not quite ready to start worrying that the sky is falling. Still, that Scalia went out of his way to write that much, in that manner, suggests that he thinks Alito can be brought back on-side, and I trust his judgement.

  2. I echo Simon’s comments…as usual, Justice Scalia correctly identifies that process is still important. I’m just surprised that Justice Thomas didn’t sign on.

  3. Todd says:

    The use of legislative history violates due process. I’m not sure why I haven’t seen Scalia put it this way, but it is, in fact true. Legislative history is always irrelevant because either it will not change the plain meaning of a statute; or it will affect the meaning of an ambiguous statute, in which case the citizen is bound by more than the words of the statute. Thus, to whatver extend the use of legislative history changes the interpretion of a statute, such change violates due process.