If you recall, I noted in my last post a certain subterfuge concocted by Senators Graham of South Carolina and Kyl of Arizona, in which the two pretended to engage in a mock floor “debate,” the alleged “purpose” of which was to “show” that Congress intended the Detainee Treatment Act of 2005 to apply to pending cases – such that Petitioner Hamdan’s (of Hamdan v. Rumsfeld) case could not be reviewed by the high court.

I must apologize for a factual error that I made in the last post. The fake colloquy between these two men was not held in one of their offices. It was, in fact, held in the well of the Senate. Otherwise, I described the conversation accurately. No other Senators were present; there was no actual debate; and the conversation occurred AFTER the actual debate had ended.

I bring up the factual error not just as a reader service, but as a roundabout way of getting to the subject of today’s post: every now and then, a Supreme Court justice unleashes a line, phrase, sentence, or even whole paragraph of poetic brilliance on us. Increasingly, such statements either do not further any conceivably point the Justice is trying to convey, or should be trying to convey, but it is pleasing to read such things amid the perfunctory and desultory prose that has creeped into Supreme Court opinions over the years.

Yesterday, Justice Scalia unleashed a corker of a statement – and the statement wasn’t even reflective of verbal brutality! In fact, the statement was an offhand musing about how all legislative history is, in effect equal – a point one would expect Scalia to make in theory, but not in practice, since he does not believe resort to legislative history at all.

The majority held that the DTA did not strip the Court of the right to hear the case because, as noted in yesterday’s post, the habeas-stripping provision – unlike its two corollary provisions – did not contain a “pending cases” clause. The majority, to strengthen its argument that the Court had jurisdiction, obliquely referred to the fact that, when the Senate debated the DTA, statements made on the floor reflective of debate BEFORE THE BILL’S passage were consistent with a legislative intent to not apply the habeas stripping provisions to pending cases. The majority noted that, by contrast, statements suggesting an intent to apply such provisions to pending cases were made AFTER the debate – indeed, they were “inserted into the Congressional record” after the debate, and were thus a less useful gauge of legislative intent.

Justice Scalia first noted that legislative intent needn’t have been divined in this case because the statute’s language was plain on its face. (It was not; moreover, in the 2004-2005 Exxon civil procedure case, he found a similarly “plain on its face” statute to be not clear on its face and held that statements made after debate had closed were of no probative value vis a vis the issue of legislative intent. Go figure). But, he said, if legislative intent were to be considered, the observation that some statements “indicative” of legislative intent were made after the debate was over, as opposed to before, should have made no difference. Now, here’s the line:

“Of course, this observation, even if true, makes no difference unless one indulges the fantasy that Senate floor speeches are attended (like the Philippics of Demosthenes) by throngs of eager listeners, instead of being delivered (like Demosthenes’ practice sessions on the beach) alone into a vast emptiness. Whether the floor statements are spoken where no Senator hears, or written where no Senator reads, they represent at most the views of a single Senator.”

Demosthenes, I learned (what is it with Scalia and his passion for Greek history?), was a prominent Greek statesman, orator, and logographer of ancient Athens. Most of his orations were direccted against the growing power of King Philip II of Macedon, whom he saw as a menace not only to Athens but to the autonomy of all Greek cities. Demosthenes delivered a series of speeches, heavily attended, denouncing the King, the first of which came to be known as the First Phillipic; the second, the Second Phillipic, and so on. He practiced delivering these speeches on the beaches of Greece.

So, Scalia, using this elegantly chiseled paragraph, seems to be saying that, assuming legislative history is “in play,” statements made by a Senator ex post facto count as much as one made during the debate because it is what the locutor is saying, rather than the size of his audience, from which legislative intent derives its significance. There are only several problems with this view, at least in this context. In an ACTUAL debate, where there is a give-and-take, someone is not, in fact, addressing an audience – someone is actually interacting with many other Senators, whose divergent views create a tapestry from which a COLLECTIVE intent can be gleaned (or not). The individual Senator’s voice may carry no more individual weight than the weight of the faux-mock debater’s, but it carries more CONTEXTUAL weight because the Senator often makes it in response to being provoked, questioned, or thrown a softball – in other words, he makes it in a genuinely deliberative process. When the majority quoted individual senators’ comments, it wasn’t, of course, doing that – it was quoting colloquy – it was quoting context, interruption, mess, divergence, revelation and resolution. Scalia, using his “audience” analogy, apparently equates believes that this process can be likened to a multitude of garbled voices whereas the subterfuge can be likened to a no less “vociferous” garble, but the things being compared are apples and oranges. Why? Audiences are passive. Demosthenes, regardless of whether he was practicing on the beach or dazzling an assembled throng, was not engaged in discussion with his audience. He was lecturing – for his own purposes. His intent – to denounce Philip – was PRECISELY the same in each case – and the record from which intent could be inferred – his speech – was precisely the same. A full-throated Congressional record that is the product of debate is more instructive than two courtly bigots’ sub rosa subterranean subterfuge. Yes, the views of a Senator are the views of a Senator, but as Orwell said, not all views are created equally. Some views can be concocted out of whole cloth. In other words, two Senators, after the expiry of a debate during which the legislative intent was made beyond clear, can pretend-query each other, “for the record,” that the intent was “up is down,” “night is day” Robert Bork’s America. Views do matter. For even Scalia must resort to usage of legislative history, and thus, by necessity, must decide what intent actually existeted. The question of what intent existed ALWAYS depends upon credibility of witnesses (speakers) in the context of facts and law.

So, I am indeed grateful for the priapic pinpoint to Demosthenes, but Nino, please: when you’re going to use ten, a hundred, a thousand dollar words, phrases, or analogies, next time go to the beach first to practice using them. Doing so might clear your head – and save you from throwing yet another Philippic.

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