The conventional wisdom was that Samuel Alito, if confirmed to the Supreme Court, would turn out to be Antonin Scalia’s trusty conservative sidekick. Hence the popularity of the nickname “Scalito.”
But maybe the conventional wisdom was wrong. Justice Alito has only been on the Court a few months, and he’s already pissed off Nino. Tony Mauro of the Legal Times reports:
Alito wrote Zedner v. United States for a unanimous Court on Monday, siding with a criminal defendant in a dispute over interpretation of the Speedy Trial Act. But Scalia, while joining the decision, wrote a concurrence criticizing Alito for citing the legislative history of the statute, which Scalia believes is irrelevant.
“Because the use of legislative history is illegitimate and ill advised in the interpretation of any statute — and especially a statute that is clear on its face — I do not join this portion of the Court’s opinion,” Scalia wrote.
The lovers’ quarrel explained, after the jump.
As Mauro explains, it would have been easy for Alito to avoid incurring Scalia’s ire:
In the drafting process, Alito could easily have mollified Scalia by deleting the paragraph that invoked legislative history. In interpreting acts of Congress, Scalia has vocally criticized reliance on legislative history — congressional floor statements, committee reports, and the like — in his 20 years on the Court, preferring instead to go strictly by the words of the statute. But the fact that Alito left the paragraph in, and Scalia felt moved to object to it, revealed at least some daylight between the two.
Perhaps this is just as well. Practically all the justices tick off Nino eventually; it was only a matter of time before Alito joined their ranks.
In sum, getting Scalia’s goat is a Supreme Court rite of passage. Welcome to One First Street, Justice Alito!