Thursday, December 07, 2006

More Scalian Slips

Mike's discussion about Scalia's "Freudian slip" re the 14th Amendment reminds me of a similar phenomenon one sometimes sees in Scalia's approach to statutory interpretation -- or, to be more precise, in Scalia's statements during oral argument in statutory cases. Consider the oral argument in Nevada v. Hibbs, the 2003 case involving a constitutional challenge to certain aspects of the Family and Medical Leave Act (FMLA). Among other things, the FMLA requires essentially all employers to grant all employees 12 weeks of family leave, and it enables employees to enforce this provision in actions for both equitable relief and money damages. Given the Court's sovereign immunity doctrine, the money damages provision is only valid against state employers if that part of the FMLA is a valid exercise of Congress's legislative authority under Section 5 of the 14th Amendment. The Hibbs Court upheld the FMLA on precisely that ground, and in doing so it stressed the ways in which the FMLA promotes gender equality and fights gender discrimination. In other words, the Court held that the FMLA is not simply a workplace benefits program enacted in the interests of interstate commerce.

Predictably, Justice Scalia dissented. For present purposes I'm less interested in what he said in his dissent than in what he said during oral argument. Inclined to view the FMLA as illegitimate Section 5 legislation, Justice Scalia told counsel for the federal government that he knew, from his own memory, what the FMLA was all about:

.... I was around at the time [the FMLA was enacted], and I remember the big -- the big discussion was whether there ought to be a Federal law that requires all employers, not States in particular, but all employers to give all workers 12 weeks of family leave if they wanted it. That was what all the discussion was. I didn't hear any discussion at the time of sex discrimination, and you present it to us as though this was the motivating factor of the legislation. I find that hard to believe.

Viet Dinh, who argued the case for the government, had a great answer: Although an earlier, unenacted precursor to the FMLA did not say anything about discrimination or equal protection, the bill that ultimately became the FMLA did stress a concern for equality. Indeed, the statement of statutory purpose explicitly says that one of the FMLA's purposes was "to promote the goal of equal employment opportunity for women and men."

My point here is not simply that Justice Scalia was wrong about the motivations underlying the FMLA, but that his own preconceptions led him to overlook even explicit statutory text that contradicted his purported memory of the statute's purpose. This is a nice example, then, of how a commitment to textualism in statutory interpretation does not necessarily solve the problems often attributed to purposivism and reliance on legislative history. If the problem with using legislative history is that it's like looking across a crowd and picking out your friends, the problem with textualism is that it does not necessarily stop a judge from ignoring his enemies even when they are standing right in front of him. Indeed, one might even go so far as to say that it's cases like this where recourse to legislative history could be especially useful, since it could tell the judge what Congress was actually debating and trying to address with a piece of legislation so that he is not left to rely on what he thinks he "remembers" from "being around at the time."


  1. Trevor:

    Let's not forget, though, that Justice Ginsburg sided with Scalia on that point:

    "JUSTICE GINSBURG: Justice Scalia is right, is he not, that it... the bill that he's talking about was the '87 bill, and that didn't say anything about the Equal Protection Clause, and that's the startling difference between the bill that actually passed in 1993."

    So, do we have a Morrison slip, here?

  2. Well, no. Justice Scalia didn't claim to be talking about the earlier bill that never became law; he claimed to be talking about the FMLA. This comment was Justice Ginsburg's way of pointing out to Scalia that his own "memory," however correct about an unenacted bill, was completely wrong about the statute actually before the Court. That she did this by saying "Justice Scalia is right . . ." was just her way of being respectful to her colleague, even as she was telling him how he was really quite wrong. (Note, in that vein, that the government lawyer took her suggestion and ran with it in amplifying his own answer to Scalia's question.)

    Just to be on the safe side, I should perhaps note that Hibbs came before the Court the year I was clerking for RBG, but that what I'm saying here is not based on any in-chambers conversations with her about the case. I'm just relying on what is fairly common knowledge re her style during oral argument.

  3. Well, I've got to admit that you have a fascinating method of interpreting Scalia's and Ginsburg's comments from the oral arguments. You say that when Ginsburg said Scalia is right, she actually meant Scalia is wrong. And, to prove the point, you insert bracketed language into your post's quote from Scalia: "[the FMLA was enacted]." But, as far as I can tell, Scalia did not say or imply those bracketed words that you inserted.

    Don't get me wrong, Scalia can be plenty wrong. It's just that your argument for his wrongness in this particular instance seems, shall we say, untethered to what was actually said in the oral arguments.

  4. Andrew, I guess we may have to agree to disagree, but for the life of me I can't figure out what you think the two Justices were actually saying. Consider:

    1. You take issue with the bracketed words I inserted in the Scalia quotation. So do you mean to suggest that in fact he was not talking about the FMLA? That would be wrong. Look at the context. Immediately before the Scalia passage in question, the government lawyer says, "The constitutional violation here that Congress seeks to redress or prevent is employment-based discrimination based upon presumptions about leave-taking habits of men and women." So the lawyer is talking about what Congress tried to do "here" -- that is, in the statute here before the Court, not in a bill that never became law. Then Scalia interjects by saying "And was that the big fight in the statute?" He doesn't say "in a bill that never became law and that was proposed several years before the FMLA was enacted"; he says "in the statute." And then he goes on to make the point I quoted in my post, about what he thinks he remembers about that statute. So Scalia, like the government lawyer he's questioning -- and indeed like everyone involved in the case -- is properly focusing on the purpose of the statute the Court is reviewing, not the purpose of some earlier bill.

    2. It's theoretically possible, I suppose, that what Scalia meant to say was (1) that he remembers the debate about the earlier unenacted bill focusing only on the conferral of a leave benefit and not on discrimination, and (2) that he doesn't remember anything different happening when, years later, the bill that became the actual FMLA was debated and enacted. I think it unlikely that he meant this, since he said nothing about point (2), and it would be an odd thing to imply by silence. But even if that's what he did mean, his memory about the FMLA would still be wrong, and my point about his memory impeding his reading of the actual statute would still stand.

    3. As for Ginsburg's aim with her question, the key is the last phrase: "and that's the startling difference between the bill that actually passed in 1993." It's a bit of a sentence fragment, but it's obvious that what she's saying is that there's a startling difference between the 1987 bill and the 1993 bill which became the FMLA. Maybe you had to be there to appreciate this point, but I think even the written transcript makes it clear that she's asking the government lawyer a friendly question here, to help him along in his answer to Scalia. Remember, Scalia's question is posed as a challenge to the government lawyer's account of congressional purpose. The government lawyer starts his answer by pointing directly to the FMLA's section on statutory purpose, which directly contradicts Scalia's claim that the statute was not really passed to address concerns about discrimination. Then to help the lawyer along, Ginsburg chimes in by saying that Scalia's memory is misplaced: he's remembering a debate about an earlier bill and ignoring that the earlier bill and the FMLA are importantly different on the precise point in issue. The government lawyer understands Ginsburg's question to be friendly in precisely this way, which is why he responds by saying "That's precisely right Justice O'Connor -- I mean, Justice Ginsburg." (I'll leave for another day and post the lawyer's own potentially Freudian confusion of the two women on the Court, though I think it was just a relatively innocent, embarrassing mistake.)

    So in light of all this, I really am mystified that you would think my comments are "shall we say, untethered to what was actually said in oral arguments." In fact, I think any reading other than the one I have outlined would involve a serious and implausible departure from what actually happened.

  5. Trevor, I agree with Justice Ginsburg that the bill that Scalia was talking about was the '87 bill. You may disagree, but that hardly authorizes you to insert your opinion in brackets within the Scalia quote, IMHO.

  6. So you think Scalia responded to the government lawyer's claims about the purpose of the FMLA by saying "Okay, but was that really what was going on in the debates about a different bill proposed several years earlier, which was never passed?" I have no idea why Scalia would ask such a question. And I don't think he did: as I just noted, he began his comment by asking about "the statute." That can mean only one thing: the FMLA -- not the '87 bill, which never became a statute. So you can believe he was pointlessly asking about the '87 bill if you want, but his own words (and common sense) suggest otherwise. In short, the bracketed material I inserted is consistent with other things Scalia says in this passage ("the statute") and with the overall import of his question, which is obvious from the context I discussed earlier. So the bracketed material I inserted is not my "opinion"; it is the only thing Scalia could plausibly have meant.

    As for Ginsburg, as I've said, by saying Scalia was "right," she was quite clearly saying that his memory is a correct memory, but not about the right piece of legislation. In other words, she disagrees with Scalia about the *relevance* of his purported memory. Do you really think otherwise? Surely not.

    At the end of the day, Ginsburg's point is mine too: Scalia's memory of a piece of non-legislation has affected his view of the actual legislation before him. To read this passage any other way is to attribute to Scalia a desire to ask literally irrelevant questions. And that, IMHO, is both implausible and unnecessary.

  7. Scalia didn't object to Ginsburg's characterization of what Scalia had said. Do nreally think Scalia would sit silently while another Justice mischaracterized what Scalia had said? Let's be real, here.

    Moreover, Ginsburg --- on her very own --- asserted that it was "startling" that the '87 bill didn't mention the EP Clause. Personally, I would find it difficult to understand how a fact could be "startling" and yet not be relevant.

    Anyway, I don't intend to belabor the point. I'll just say that your inappropriate use of brackets has resulted in a misquote of Justice Scalia. Maybe the misquote was unintentional, but I think that upon further reflection you might agree that it's not fair.

  8. The bracketed material was entirely appropriate and accurate, and did not misquote Scalia.

    Andrew, you may have to taky my word for it (or not), but I can tell you that after Ginsburg made her point, Scalia simply sat back in his chair looking corrected. At the time, it seemed clear that he simply realized his error.

    But no one needs to take my word for it on that point. I invite anyone who is reading all this, and who cares, simply to read the entire colloqury in question. The test for whether I've used square brackets inappropriately is whether I've changed Scalia's intended meaning. I think the answer is no, and quite obviously so. Andrew apparently thinks otherwise. Everyone else: just read the colloquy and you'll see what I mean.

  9. Here's the pertinent part of the transcript regarding the Family and Medical Leave Act:

    JUSTICE SCALIA: It says you get 12 weeks, and if... if we approve this, we are establishing the proposition that in order to eliminate, to enforce any of the provisions of the Fourteenth Amendment, but in particular equal protection, the Government may establish whatever substantive requirements might further equal protection, and I just don't know where the Government plucks 12 weeks from and says that it... we have to stop discrimination, and therefore everybody's entitled to 12 weeks of leave, and it's an extraordinary leap.

    VIET D DINH: --Your Honor, I disagree that there is no limiting principle here, and the limiting principle is precisely provided by this Court's jurisprudence in congruence and proportionality.

    That's precisely the limiting principle as to what is the constitutional violation that Congress seeks to redress, and whether or not the remedy is congruent and proportional.

    The constitutional violation here that Congress seeks to redress or to prevent is employment-based discrimination based upon presumptions about leave-taking habits of men and women.

    JUSTICE SCALIA: And was that the big fight in the statute?

    Is that what was really going on when this 12-week... I mean, I... I was around at the time, and I remember the big... the big discussion was whether there ought to be a Federal law that requires all employers, not States in particular, but all employers to give all workers 12 weeks of family leave if they wanted it.

    That was what all the discussion was.

    I didn't hear any discussion at the time of sex discrimination, and you present it to us as though this was the motivating factor of the legislation.

    I find that hard to believe.

    VIET D DINH: Your Honor, I was not there at the time, and I--


    But I will take your word for it, but more importantly, I think we should take Congress' word on its face.

    Congress says at 29 U.S.C. 2601(b)(5) that the purpose of the, one of the purpose of the statute is, quote, to promote the goal of equal employment opportunity for women and men pursuant to the Equal Protection Clause, and the further evidence--

    JUSTICE GINSBURG: Justice Scalia is right, is he not, that it... the bill that he's talking about was the '87 bill, and that didn't say anything about the Equal Protection Clause, and that's the startling difference between the bill that actually passed in 1993.

    VIET D DINH: --That's precisely right, Justice O'Connor... I mean, Justice Ginsburg.

    Justice Scalia was talking about S. 249, the 1987 bill.

    The first time that the section (5), the promotion goal that entered into the statute was in the next iteration, H.R. 925 in the House, in 1987, and concurrent with the insertion of the promotion of equal opportunity, Congress also included the provision for family leave for care of parent illnesses, as opposed to simple... simply children illnesses.

    And so there is some concurrency with respect to Congress' reliance on, for the first time, section (5) authority and the grant of family leave, and that's consistent with the legislative record that was before Congress.

  10. Yes, that is indeed the relevant passage. And as it confirms, both Justice Ginsburg and Viet Dinh expose Justice Scalia's error by saying, in effect, "Well, your memory is correct, but not about the right piece of legislation." But that, of course, doesn't mean that Justice Scalia actually meant to refer to the wrong bill (i.e. the 1987 bill) -- since, as I have been saying, there would be no point in doing so. He talks about the fight that led to "the statute," and later refers to "the motivating factor of the legislation." That is, he thought his memory was of the fights leading to the bill that actually became "the statute" at issue in the case. That's what my square brackets attribute to him.

    Justice Ginsburg and Viet Dinh correct Justice Scalia by pointing out that he's thinking of the debates associated with a different bill, which never became a statute, and which is not before the Court in this case. Dinh even says "Justice Scalia was talking about S. 249, the 1987 bill." But in context, he's clearly saying "Justice Scalia's *memory* is of the 1987 bill, which was different from the bill that became the FMLA, and thus he's wrong to connect that memory to 'the statute' at issue in this case." Context, as even a good textualist will tell you, is critical to understanding text.

    Okay, by now I've said more than enough to make my point clear, so I won't post any more comments on this thread. I thank Andrew for reproducing the relevant part of the transcript here, in case anyone is actually following this thread and wants to go read the colloquy themselves. And as I said before, I hope they will do so.

  11. Here's an excerpt from Kennedy's dissent in the case, joined by Scalia and Thomas:

    "Congress relied on the experience of the States in designing the national leave policy to be cost-effective and gender-neutral. S. Rep. 103-3, at 12-14; Parental and Medical Leave Act of 1987: Hearings on S. 249 before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 100th Cong., 1st Sess., pt. 2, pp. 194-195, 533-534 (1987)."

    So, these Justices all felt that S. 249 was relevant to the case. Justice Ginsburg thought so too, or else she wouldn't have pointed to a "startling" difference with the ultimately-enacted bill.

    The fact that S. 249 omitted any mention of the EP Clause supports Scalia's suggestion that the EP discrimination argument was only concocted at the last minute, and was not really a central issue in Congress.

    Anyway, even if by some very slight chance Trevor is correct that Scalia was confusing S. 249 with the bill that was ultimately passed, and Trevor is correct that Scalia meekly backed off after being corrected, still that would merely show that Scalia erred and realized his error. Hardly a capital offense during oral arguments.

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