Learning from Antonin Scalia – The Story of the “Hapless Law Clerk”

I found this story by Justice Scalia’s former law clerk John Duffy on Scotusblog.  It discusses Scalia’s concurring opinion in Conroy v. Aniskoff (1993).  It contains a great lesson about the usefulness of legislative history.  The full article is here.

It seems there is a federal law somewhere that says that if a governmental agency forecloses on property, the redemption period (assuming there is one I guess), is extended or “tolled” by the amount of time the debtor is in the military.  Sounds good so far.  Who could be against that?  Some guy gets drafted or volunteers and schleps off to somewhere to defend freedom, he should get more time to redeem property being sold because he didn’t pay some tax.  Does the additional time however apply to a career military man?  In that case, the tolling period might be 30 years?  He just doesn’t have to pay his taxes until he retires?  That’s what happened in Conroy.  The Supreme Court ruled – 9-0 – that the code says what it says, that if it doesn’t make much sense, tell Congress.  The majority said that the language is clear – yes it’s tolled for whatever time the man is in the military.  The opinion then went on to explain that the ruling is justified by the legislative history.

Scalia separately concurred, taking the majority to task and giving us a nice lesson to remember, to wit – to hell with legislative history.    He writes,

The Court begins its analysis with the observation: “The statutory command in 525 is unambiguous, unequivocal, and unlimited.” Ante, at 514. In my view, discussion of that point is where the remainder of the analysis should have ended. Instead, however, the Court feels compelled to demonstrate that its holding is consonant with legislative history, including some dating back to 1917 – a full quarter century before the provision at issue was enacted.  That is not merely a waste of research time and ink; it is a false and disruptive lesson in the law.  It says to the bar that even an “unambiguous [and] unequivocal” statute can never be dispositive; that, presumably under penalty of malpractice liability, the oracles of legislative history, far into the dimmy past, must always be consulted.  This undermines the clarity of law, and condemns litigants (who, unlike us, must pay for it out of their own pockets) to subsidizing historical research by lawyers.

Scalia goes on then at some length to show that the legislative history in this very case, if you dig far enough (thus the hapless clerk) actually suggests that Congress did not mean what the words say.  If you dig far enough you can find language that will support almost any tack you wish to take.  He writes,

I confess that I have not personally investigated the entire legislative history – or even that portion of it which relates to the four statutes listed above.  The excerpts I have examined and quoted were unearthed by a hapless law clerk to whom I assigned the task. The other Justices have, in the aggregate, many more law clerks than I, and it is quite possible that, if they all were unleashed upon this enterprise, they would discover, in the legislative materials dating back to 1917 or earlier, many faces friendly to the Court’s holding.  Whether they would or not makes no difference to me – and evidently makes no difference to the Court, which gives lipservice to legislative history but does not trouble to set forth and discuss the foregoing material that others found so persuasive.  In my view, that is as it should be, except for the lipservice.  The language of the statute is entirely clear, and if that is not what Congress meant, then Congress has made a mistake and Congress will have to correct it.  We should not pretend to care about legislative intent (as opposed to the meaning of the law), lest we impose upon the practicing bar and their clients obligations that we do not ourselves take seriously.

Courts are supposed to enforce the law.  To do that they often have to figure out what Congress intended when it wrote whatever it is it wrote.  Scalia finishes in a footnote with some thoughts on the idea of “Congressional intent.”

When I say “Congress intended,” here and hereafter in this excursus into legislative history, I am speaking as legislative historians speak, attributing to all Members of both Houses of Congress (or at least to a majority of the Members of each House), and to the President (or, if the President did not sign the bill in question, then to at least two-thirds of the Members of both Houses of Congress) views expressed by the particular personage, or committee of personages, whose statements are being described – in the case of the citation at issue in this sentence, a committee of the House of Representatives.  It is to be assumed – by a sort of suspension of disbelief – that two-thirds of the Members of both Houses of Congress (or a majority plus the President) were aware of those statements and must have agreed with them; or perhaps it is to be assumed – by a sort of suspension of the Constitution – that Congress delegated to that personage or personages the authority to say what its laws mean.

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