This morning the Supreme Court decided Octane Fitness, LLC v. Icon Health & Fitness, Inc., concerning the proper standard of appellate review of a district court’s award of attorney’s fees in patent infringement cases.  That’s not an issue that keeps many people up at night (apologies to my friends in the patent bar), and the Court’s judgment was unanimous.  So why is it worth a post?  Because while all nine justices agreed on the result, and signed on to a single opinion by Justice Sotomayor, Justice Scalia refused to join three footnotes in the Court’s opinion.  What gives?

The reason Justice Scalia refused to join three of the six footnotes in Octane Fitness is because of their content.  All three suspect footnotes in Octane Fitness addressed the legislative history of the Patent Act’s fee-shifting provision.  Why does this matter to Justice Scalia? Because he does not believe that legislative history, including committee and conference reports, legislative colloquys, and the like, are reliable means of discerning legislative intent.  As some legal commentator once quipped, such legislative history contains all the stuff for which there were not enough votes to put in the bill.  According to Justice Scalia, the meaning of a statute should be discerned by the statutory text itself.  After all, it is the statute, and not some report cobbled together by legislative staff, that goes through bicameralism and presentment and is enacted into law.

In Octane Fitness it does not appear that the legislative history materials made any difference.  The Court was unanimous.  Justice Scalia reached the same conclusion as his other colleagues even when refusing to consider some of the relevant materials.  So why include references to legislative history at all?  Because not all of the justices on the Court share Justice Scalia’s hostility to legislative history and some, such as Justice Breyer, believe that legislative history often sheds light on how legislators understood what they were enacting.  In this case, one can presume that some of the Justices — including the opinion’s author, Justice Sotomayor — believed that the legislative history reinforced the Court’s conclusions.  Moreover, it is clear from footnote 3 that the parties addressed the legislative history, so some of the justices may have thought it particularly appropriate to resolve the dispute over what the relevant materials mean.  So that explains why today’s opinion in Octane Fitness was unanimous — except for three footnotes.