By Craig Albert
Chief Justice Roberts and Justice Alito didn't exactly tell Justice Scalia to sit down and shut up yesterday, but they might as well have. Scalia's partial dissent in Decker v. Northwest Environmental Defense Center is a twelve-page diatribe repeating familiar Scalian ideas regarding textualism and deference. The first paragraph of substance -- the one after the obligatory one that spells out which parts of the lead opinion he joins -- is three words long: "Enough is enough."
Seven justices (including Thomas and excluding the recused Breyer) joined the Court's opinion; that lead opinion had nothing whatsoever to say about the dissenting polemic. But Roberts and Alito were apparently annoyed enough with Scalia's exegesis that they went out of their way to say, in law-talk, "You may have a point, but this is neither the time nor the place." Thomas's concurring silence speaks volumes to me.
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To borrow from the subject of the concurring opinions, this "shut up" reading is not the ony permissible one.
For my money, Roberts and Alito are really saying two things: 1)"here's why, contrary to Nino's points, our decision is not all wet: the issue he raises was not addressed in any sort of a complete way by this case." 2) "hey bar--- we think Nino has some good points; find the right case and you'll get a thoughtful audience."
And you might even imagine that Alito, Roberts AND Thomas were happy to have Nino harmlessly tee up an issue for another day while they get to play the role of the good common law judges who address only the narrow issues before them.
Anyway, I think there's a reading to these concurrences that excludes any implication of benchslap.
I'll also note, on a substantive point, Scalia was the only defender of the environment on this decision.
It's possible that Adam S is correct, but I doubt it. I think that if Roberts and Alito were saying something nice, then Thomas would have joined either them or Scalia, so I think it's more likely that this was a "benchslap".
Perhaps more interesting is Justice Scalia's invocation of the canon of last antecedent to decide this case. The relevant EPA rule says that permits are not required unless the relevant kind of runoff is the result of "manufacturing, processing, or raw materials storage at an industrial plant". Justice Scalia, following the canon, says that "at an industrial plant" only modifies "raw materials storage" and not "manufacturing" or "processing". He uses the following analogy to make his case. If Congress were to make it illegal to possess a grenade-launcher, a fully automatic weapon, or a shotgun with a barrel less than 12 inches, then Congress would not merely be making it illegal to possess a grenade-launcher with a barrel less than 12 inches.
Wow. Justice Scalia very badly needs training in semantics. His own construction of his hypothetical statute confirms the canon of last antecedent only because everyone knows that grenade-launchers don't come in handy when their barrels are sawed off. So, in this very particular context, it would make little sense to interpret "with a barrel less than 12 inches" as applying to grenade-launchers. Moreover, it is plausible that "with" clauses don't work quite like "at" clauses. Think of the following rule: "doctors who administer drug treatments, radiation treatments, or surgical treatments at an unlicensed medical facility shall be fined". I read the rule as reaching only doctors who administer drug treatments *at an unlicensed medical facility*, and as not reaching doctors who administer drug treatments *anywhere*. Justice Scalia thinks that the rule of last antecedent is the default interpretive rule here. That just strikes me as obviously false as a matter of semantics.
The moral: canons are dangerous.
The opening of Scalia's opinion reflects a reason so many don't like him. It has his usual combative tone that simply put is not what a judge, surely not the senior member in service of the USSC should act like.
The overall idea that such and such is wrong and if given the chance we should overturn it is something justices say from time to time. Less, but at times, they note they would do so then and there, even if it was not fully briefed or the like.
See, e.g., how Mapp v. Ohio was handled or Oregon v. Smith (Souter criticized it partially on this ground in his opinion in the Santeria case).
Others sometimes might add "you have a point, but this isn't a good time for it." Brennan kind of said that in Poe v. Ullman -- he joined the majority, but it was fairly reasonable to assume he was sympathetic with the dissent.
So, I wouldn't take too much from this sort of thing.
He uses the following analogy to make his case. If Congress were to make it illegal to possess a grenade-launcher, a fully automatic weapon, or a shotgun with a barrel less than 12 inches, then Congress would not merely be making it illegal to possess a grenade-launcher with a barrel less than 12 inches.
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