Among the things that judges and law professors love to argue about is how a judge interprets the written words of a constitution or a law. In the United States the Constitution proscribes what must happen before something becomes a law: It must be voted upon and passed by majorities in both the House of Representatives and the Senate, then signed by the President.
But Congress usually does a lot of work on the proposed law before it is passed. Usually staffers write the bill, either in the White House or committee staffers in Congress do it. In the normal course, committees on both sides of the Hill hold hearings on the bills which are often rewritten or amended as the process continues. Then, before both houses of Congress vote, all congressmen have the opportunity to be heard about the bill. Their debate and the record of the hearings gets written down and saved. The statute becomes law after passage by both houses and signature by the president. (Or by both houses overriding the president’s veto.) Lawyers call the record of passage the “legislative history.”
But the language of statutes is like that of politics, “designed,” wrote Orwell, “. . .to give an appearance of solidity to pure wind.”
Laws, like all human language, can be, and often are, ambiguous. The job of “disambiguating” ambiguous laws belongs to judges.
So, of course, Justice Scalia has opinions about how they are to go about it.
Which makes one of this week’s opinions of the Supreme Court interesting. By a vote of 7-2 the court interpreted a statute allowing a private citizen to sue on behalf of the U.S. Government when the government has been overcharged by someone or some corporation. Justice Scalia agreed with the result but added a short concurring opinion expressing his disdain for “legislative intent” as revealed by the record of congressional action before the bill became a law.
Justice Scalia, as always, is succinct:
I agree that the stray snippets of legislative history . . . the dissent have collected prove nothing at all about Congress’s purpose in enacting [the law at issue] But I do not share the Court’s premise that if a “‘legislative purpose’” were “‘evident’” from such history it would make any difference. The Constitution gives legal effect to the “Laws” Congress enacts, Art. VI, cl. 2, not the objectives its Members aimed to achieve in voting for them. If [the law’s] text includes state and local administrative reports and audits, as the Court correctly concludes it does, then it is utterly irrelevant whether the Members of Congress intended otherwise. Anyway, it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.
Justice Breyer dissented, believing that the majority misinterpreted Congress’s intent in passing the law and maintaining that a it is a part of a judge’s job to resolve ambiguities by looking at legislative intent.
Unlike Scalia, Breyer hardly ever is succinct.
But it didn’t matter. Justice Breyer didn’t write the dissent. He has a new soul-mate on the question of legislative intent. Justice Sotomayor wrote the dissent and all Justice Breyer had to do was sign her opinion. She thinks the Court misread Congress’s intent as discerned from the text of the law and the legislative history.
One can imagine that Justice Scalia was not pleased.
We pass without comment on Justice Scalia’s 100 plus page opinion in the gun case where he does exactly what he usually disdains. Only he goes beyond what Congress intended: He discerns what the pre-industrial-age-male, property-owning voters intended when they voted to ratify the Bill of Rights. Apparently their intent is relevant and easier to discern than that of 20th Century legislators.
Amazingly, Justice Scalia’s divinations of what those voters of long ago intended almost always accords with his own inclinations. Probably a coincidence.
For more on legislative history, here is an informative page about the Congressional Record.
The opinion of the Court to which this post refers is here.
For more on Justice Scalia’s views about original intent see this post discussing two conservative judges’ take on his opinion in the Heller case.