The newer textualism: Justice Alito's statutory interpretation.

• Author: Davis, Elliott M.

1. INTRODUCTION

   Despite his fifteen-year tenure as a judge on the U.S. Court of Appeals for the Third Circuit, Justice Samuel Alito remained something of a mystery when he was nominated to the Supreme Court in 2005. His lower court opinions were described as "reserved," much unlike the sometimes polemical screeds penned by other members of the bench. (1) Justice Alito's seemingly conservative views as an appellate judge prompted some commentators to compare him to Justice Antonin Scalia, (2) but these analysts made little headway in defining Justice Alito's legal methodology with any measure of precision. More than a year after his confirmation, legal scholars, the media, and the American public still have many questions about Justice Alito. This Note attempts to answer one of those questions: What is Justice Alito's method of statutory interpretation?

   In 1990, Professor William Eskridge documented the rise of the "new textualism" that Justice Scalia brought to the Supreme Court upon his elevation in 1986. (3) The new textualism, Professor Eskridge explained, "posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant." (4) This Note contends that, notwithstanding the frequent comparisons to Justice Scalia, Justice Alito brings a markedly different flavor of textualism to the Court. For him the text of the statute still reigns supreme, but legislative history can be used to establish the context in which the statute should be read. Just as Justice Scalia's new textualism has influenced the Court since the 1980s, (5) Justice Alito's "newer textualism" might very well make a similar impact on the Roberts Court.

   One of Justice Alito's first opinions as a member of the Court serves as the catalyst for this theory. In Zedner v. United States, (6) Justice Alito used a federal statute's legislative history to confirm his interpretation of the unambiguous statutory text. (7) This move--unorthodox for many textualists--prompted a concurring opinion by Justice Scalia vigorously protesting the use of legislative history. (8) Part II of this Note analyzes Zedner, using the dueling opinions of Justices Scalia and Alito to showcase three frameworks through which one can view legislative history and to set the stage for this Note's thesis. Because textualism in practice often demands more than what textualism allows in theory, Part III.A surveys the core tenets of textualism, while Part III.B reviews one of Justice Alito's typical statutory cases from the Third Circuit and concludes that, at least in simple cases, Justice Alito exhibits textualist behavior.

   Part IV explains and defends Justice Alito's newer textualism. Part IV.A describes Justice Alito's use of legislative history by comparing two of his Third Circuit cases; Part IV.B reconciles his use of legislative history in the chronologically-later case with the core tenets of textualist theory. That case serves as an example of the newer textualism. Part IV.C defends the newer textualism against Justice Scalia's critique of legislative history. Finally, Part IV.D then argues that Justice Alito's newer textualism is normatively superior to Justice Scalia's practice.

   As a disclaimer, this Note does not attempt to demonstrate that textualism is superior to other methods of statutory interpretation. Nor is its analysis meant to serve as a comprehensive review of all of Justice Alito's opinions interpreting statutes. Additionally, this Note does not attempt to rationalize all of his opinions, nor does it contend that his opinions are invariably correct. Instead, this Note focuses on several opinions in which Justice Alito explicitly sets forth his interpretive method, and uses these opinions to help answer a question that many have posed since his nomination and confirmation: Who are you, Justice Alito?

2. LEGISLATIVE HISTORY SERVED THREE WAYS: ZEDNER AND THE TEXTUALIST FUTURE OF THE COURT

   The dueling opinions of Justices Scalia and Alito in Zedner set the stage for a comparative examination of their methods of statutory interpretation. Justice Scalia's concurrence, which attacks Justice Alito's use of legislative history, describes only two possible approaches to legislative history. (9) In Justice Scalia's disfavored approach, a judge considers legislative history an authoritative source of congressional intent that can, at least on occasion, override seemingly unambiguous statutory text. (10) In Justice Scalia's favored approach, a judge views legislative history as entirely "illegitimate" and irrelevant for the purposes of statutory interpretation. (11) Although Justice Alito did not defend his use of legislative history against Justice Scalia's critique, his opinion in Zedner hints at a third approach that Justice Scalia did not address. Justice Alito's third approach, where legislative history is used in a narrow fashion to shed contextual light on statutory text, is the key to his method of statutory interpretation--the "newer textualism." This newer textualism not only respects the core tenets of textualism, but is also normatively superior to Justice Scalia's approach, in which legislative history is uniformly rejected.

   In Zedner, the Court considered, among other issues, whether a defendant can prospectively waive his rights under the Speedy Trial Act of 1974. (12) Although the Act typically requires a federal criminal trial to commence within 70 days after a defendant is charged or makes an initial appearance, (13) the defendant in this case signed a blanket waiver of his Speedy Trial Act rights at the suggestion of the trial judge. (14) Thus, the Court needed to decide whether such a waiver was permitted under the statute.

   Writing for the Court, Justice Alito noted that the Act contained no provision contemplating waiver and that the structure of the Act indicated "that this omission was a considered one." (15) He contended that allowing prospective waivers would undermine the interest of the public in a speedy trial, which he identified as one of the purposes of the Act. Justice Alito cited the language of the Act to support his assertion that it "was designed with the public interest firmly in mind." (16) Instead of ending his statutory analysis there, however, he proceeded to quote from the Senate and House reports to confirm that the Act was, indeed, written with the public interest in mind. (17)

   This arguably unnecessary paragraph drew a scathing rebuke from Justice Scalia, who concurred in everything except the Court's use of legislative history. (18) "[I]f legislative history is relevant when it confirms the plain meaning of the statutory text," Justice Scalia protested, "it should also be relevant when it contradicts the plain meaning, thus rendering what is plain ambiguous." (19)

   Justice Alito could easily have removed the offending section from his opinion without altering the outcome of the case, thereby bringing the Court together in unanimity. His decision to include this section in the face of Justice Scalia's fiery reprimand suggests that the importance of Zedner reaches beyond the relatively narrow substantive issue presented by the case. (20)

   Although Justice Scalia is the most vocal textualist on the Supreme Court and, perhaps, in the country, one must not forget that his approach does not represent the only possible understanding of textualism, even if one starts with the same assumptions that he does. Because other understandings of textualism are possible, a brief review of textualism is necessary before any conclusions can be drawn about Justice Alito's method of statutory interpretation.

3. STATUTORY SUPREMACY AND THE JUNIOR JUSTICE

   This Note evaluates Justice Alito's method of statutory interpretation in a two-step process. This Part addresses the threshold question of whether Justice Alito considers unambiguous statutory text to be superior to conflicting legislative history. Part III.A offers an overview of the origins and the core tenets of textualist theory. Part III.B introduces a typical case in which Justice Alito had the option of rejecting unambiguous statutory text in favor of statements found in the legislative history. By holding the unambiguous statutory text superior to the legislative history, Justice Alito exhibits threshold textualist behavior.

   1. Textualism's Tenets

      For most of its history, the Supreme Court attempted to interpret statutes in light of "the original intent or purpose of the enacting Congress." (21) That is, where a statute's clear text did not comport with what was said to be the statute's purpose, the Court would hold the purpose superior to the text under the theory that judges should properly act to implement Congress's true intentions. (22) Only in the 1980s, through the efforts of Justice Antonin Scalia and Chief Judge Frank Easterbrook of the Seventh Circuit, did modern textualism emerge as a serious alternative to the traditional purposive method. (23)

      The basic premise of textualism is that judges "must seek and abide by the public meaning of the enacted text, [as] understood in context" and should "choose the letter of the statutory text over its spirit." (24) Textualists argue that only the statutory text has passed the constitutional requirements of bicameralism and presentment, and that judicial reliance on unenacted intentions or purposes "disrespects the legislative process." (25) Since the constitutional requirements for enacting a statute promote the balancing of interests and thoughtful deliberation, textualists claim that reliance on unenacted intent or purpose skirts the constitutional protections designed to safeguard liberty by diffusing legislative power. (26)

      Additionally, textualists reject the traditional approach's search for a statute's "spirit" as an exercise in futility. (27) Textualists generally contend that a collective body of hundreds of individuals cannot possess a singular cognizable...