Maybe Not Scalito

An early encouraging sign from Justice Alito.

THE SUPREME Court's decision yesterday in the case of Zedner v. United States won't grab headlines. The unanimous opinion interpreting the requirements of the Speedy Trial Act is hardly one of this term's highlights. Yet the opinion by Justice Samuel A. Alito Jr. may offer a clue as to what sort of justice he will be -- or, perhaps we should say, what sort of justice he will not be. Justice Alito's critics tagged him "Scalito," suggesting that he is a clone of Justice Antonin Scalia. Yet in his opinion for the court, Justice Alito committed one of the cardinal sins of Scaliaesque judging: He cited the act's legislative history.

Justice Scalia has long argued that only the texts of statutes matter. The congressional reports and deliberations surrounding their enactment are irrelevant. Indeed, rejection of legislative history is one of the distinctive features of his jurisprudence -- one that makes it particularly rigid. He often writes separately from opinions that cite such history to note his disdain, as indeed he did in this case. Justice Alito could have dodged the conflict by omitting the brief discussion. He didn't. That's a good sign. It shows a certain flexibility concerning where to look for a law's meaning. It also suggests that on basic methodological questions, he's nobody's clone.