Intrigue in the Marble Temple

By Mike Dorf

In my latest FindLaw column, I consider the dust-up over legislative history in Tuesday's opinions in Samantar v. Yousuf.  Although the Court is unanimous in its result, the case occasions a concurrence in the judgment by Justice Scalia in which he chides the majority for not only using legislative history, but using it in a case in which it appears superfluous.  Perhaps the most intriguing aspect of the case is a passage in Justice Scalia's separate opinion that suggests behind-the scenes pique.

The Court invokes legislative history, Justice Scalia notes with evident irritation,
in a fashion that does not isolate the superfluous legislative history in a section that those of us who disagree categorically with its use, or at least disagree with its superfluous use, can decline to join. I therefore do not join the opinion, and concur only in the result. 
It's as though Justice Scalia has a peanut allergy and rather than serving the peanut sauce on the side, the majority has smeared it all over the entree.  How inconsiderate!

Court watchers like yours truly are left wondering what happened.  When the vote at conference was unanimous for the result, and Justice Stevens was assigned the opinion, did he deliberately sprinkle the legislative history throughout the opinion so as to annoy Justice Scalia?  Or was it inadvertent?  If so, one would expect Justice Scalia to have written a memo to Justice Stevens detailing the changes he wanted so that he could join part of the opinion.  Did he write such a memo?  Did Justice Stevens then refuse to make the changes?  Or did Justice Scalia simply fire off his own concurrence in the judgment without first asking for changes?  If so, that itself would be something of a breach of protocol.

Meanwhile, what are we to make of the fact that CJ Roberts--a sometime-textualist--simply went along with the majority opinion without registering any disagreement with the use of legislative history?  In that respect, the case resembles U.S. v. Comstock, about which I wrote my next most recent FindLaw column.  In Comstock, CJ Roberts cast the crucial fifth vote for Justice Breyer's opinion, which states the test of congressional power under Article I quite broadly.  Could CJ Roberts be sliding towards the center?

My best guess is no.  Instead, I think that CJ Roberts feels some obligation to join in full (and not write separately to qualify) the opinions authored by his colleagues to whom he has given assignments.  That's  consistent with the view of the Chief Justice's role that he espoused when he was nominated to the Court: conciliator and bridge builder.

However, if that is indeed what's going on, I doubt it will have more than a marginal impact.  On the issues that sharply divide the Court ideologically--abortion, campaign finance regulation, race-based government action, scope of habeas, etc.--CJ Roberts has shown himself fully capable of staking out strong positions on the conservative side.  Tempering such substantive aggressiveness with the procedural nicety of stifling small disagreements in much less divisive cases can only have a small impact.  For better or worse, the Court's tone is set by the ideologically laden cases.  Thus, I would expect hard-hitting disagreement in the remaining divisive cases on the docket, especially McDonald v. Chicago, the 2nd Amendment incorporation case.

Of course, I could be wrong about any and all of these observations.  Inferring the inter-personal dynamics on the Court from the evidence in the opinions is a bit like Kremlinology in the days of the Soviet Union: A fun pastime, but one capable of missing impending cataclysmic change.