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June 21, 2012

Has Justice Scalia won the legislative history war despite losing Dorsey battle?

There is much to say in future posts on future days about the merits and the likely aftermath of the Supreme Court's work in the crack pipeline cases Dorsey and Hill (which I will soon just be calling Dorsey and have already discussed here and here).   But before diving later into matters of substance, I want to make two quick points about SCOTUS method.

First, I want to praise in a hearty, heartfelt way the notable fact that neither opinion in Dorsey uses the word "retroactivity" to describe the issue in the case.  I explained in this post a few months ago why I thought the term "retroactivity" has been lots of (opaque and confusing) meanings and why I did not think the issue in the Hill and Dorsey FSA pipeline cases was properly cast as a retroactivity issue.  I am so very pleased to see that Justices avoid any use of this (loaded?) term in the Dorsey opinions.

Second, I want to spotlight that Justice Breyer's majority opinion in Dorsey makes no real mention of any of the (many) statements of "legislative history" which surrounded the passage of the Fair Sentencing Act.  The parties and amici advocating the interpretation adopted by the majority in Dorsey rightly and effectively cited to lots of helpful legislative history to support its arguments, but none of this history is mentioned in the Court's opinion.  I have to suspect that the majority, knowing that any reliance on legislative history in this context might prompt a sharp retort from Justice Scalia (or other dissenters), decided it could and should set forth support for its ruling without reengaging any broader debates over the consideration of legislative history in statutory interpretation.

June 21, 2012 at 01:07 PM | Permalink


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No, not yet! As much I hate to admit it, Scalia and dissenters are correct. I do not understand why Breyer comes up with "twisted" justification for the applicability of the FSA to the "pipeline" cases. The majority is clearly wrong, in my opinion.

Posted by: John Marshall | Jun 23, 2012 4:01:26 AM

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