But one piece of evidence is always controversial at the court, and lawyers offer it up with the same trepidation they would show in lighting a short-fused firecracker.
The evidence is the legislative history of an act, and the firecracker is Justice Antonin Scalia.
Scalia says that “examining the entrails of legislative history” is a fool’s errand. He has denounced the practice of looking at committee reports, floor debates and legislative pronouncements for decades. Several years ago he offered a distillation of his view that judges should look only to the language of the law Congress passed.
“The statute is what Congress voted on, not what some committee member said he thought it meant,” Scalia said. “I don’t care what he thought it meant, since the rest of the Congress didn’t know what he thought it meant when they voted for the law.”
The force — and limits — of Scalia’s objections were on display at the court last week.
Example One was the court’s deliberations in Dorsey v. United States
, in which the justices were trying to determine when Congress meant for the new and decreased penalties for crack cocaine possession it passed in 2010 to go into effect.
Lawyers not wanting to rile Scalia — the court’s most aggressive and relentless questioner — approached the subject almost apologetically.
“Congress explained, for those who read legislative history, that it wanted . . .” was the offering from Deputy Solicitor General Michael Dreeben.
His counterpart, Washington lawyer Miguel A. Estrada, made his approach this way:
“As a pure statutory construction matter and for those members of the court who give weight to legislative history . . . ”
But lawyers also know that legislative history can work in their favor, because the truth is that Scalia is the only member of the court who always objects to its use.
That was apparent in Example Two from last week. Justice Sonia Sotomayor wrote the court’s unanimous decision that when Congress passed the Torture Victims Protection Act allowing victims to sue for overseas atrocities, it meant that only individuals, not organizations, could be the target.
Sotomayor acknowledged that that limited the impact of the legislation, but it reinforced the court’s view that it was what Congress wanted by citing its legislative history. During the mark-up of the bill, she wrote, one of the sponsors submitted an amendment “to make it clear we are applying it to individuals and not to corporations.”
Scalia dutifully objected to that part of the ruling, but he was the only justice to do so.
And some justices, such as Stephen G. Breyer, find it vital to examine legislative history.
As he wrote in concurring with Sotomayor’s opinion:
“The word ‘individual’ is open to multiple interpretations, permitting it, linguistically speaking, to include natural persons, corporations, and other entities . . . The legislative history of the statute, however, makes up for whatever interpretive inadequacies remain after considering language alone.”
David S. Law, a Washington University in St. Louis professor, agrees with Scalia that the court’s use of legislative history has diminished over the years.
But he and fellow researcher David Zaring did not attribute that diminishment to Scalia’s influence. Perhaps more important, they said, was the more dominant roles conservatives play on the court.
“Liberal justices are generally more likely than conservative justices to cite legislative history,” they found. “The decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the court,” they said.
Nevertheless, Law said in an interview, the court’s conservatives are not uniformly opposed. “If I was arguing and I thought legislative history was helpful, I’d use it,” he said.
Sessions vs. Kagan
It’s not over between Sen. Jeff Sessions (R-Ala.) and Justice Elena Kagan.
Sessions was one of Kagan’s toughest critics on the Senate Judiciary Committee when she was nominated by President Obama in 2010. Last week, he revived his complaints about her when he became one of only two committee members to vote against Maine lawyer William J. Kayatta Jr., whom Obama nominated to the U.S. Court of Appeals for the 1st Circuit.
Kayatta’s transgression, according to Sessions, is that he was the lead investigator for the American Bar Association panel that gave nominee Kagan its highest rating — “Unanimous Well-Qualified.”
Given that Kagan had never been a judge and had little experience in private practice, Sessions said, such a rating “was not only unsupported by the record but, in my opinion, the product of political bias.”
Kagan had been a law professor at the University of Chicago, worked in the Clinton White House as a lawyer and policy adviser, was the first female dean of Harvard Law School and served for a year as solicitor general before her nomination.
Sessions softened the criticism a bit. “I am not suggesting that he should have concluded that Ms. Kagan was unqualified,” he said.
To read previous High Court columns by Robert Barnes, go to postpolitics.com