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."