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Just four months after joining the Supreme Court, Samuel Alito Jr. on Monday joined the club of jurists who have been targets of Justice Antonin Scalia’s wrath. 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 side spat is a small but significant sign of Alito’s independence from Scalia, whom many presumed would be a consistent conservative ally and friend. 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. Alito’s use of legislative history places him closer to the camp of moderate-liberal Justice Stephen Breyer, who last year warned in his book Active Liberty of “the danger that lurks where judges rely too heavily on text.” Monday’s ruling favored Jacob Zedner, indicted in 1996 on seven charges of bank fraud. Both he and the prosecution sought delays in the trial, raising red flags because of requirements of the Speedy Trial Act that a trial begin 70 days after a defendant is charged. Responding to a request from the judge, Zedner signed a form waiving his rights “for all time” under the law. After four years of procedural delays, Zedner moved to dismiss the indictment, claiming the prosecution had violated the Speedy Trial Act. The motion was denied, the trial proceeded, and he was found guilty. The U.S. Court of Appeals for the 2nd Circuit ruled against Zedner, finding that because he had contributed to the delay in the trial, he could not object to it. At issue before the Supreme Court was the standard for analyzing when a defendant has legitimately waived his rights under the law. Alito wrote that the Speedy Trial Act was “designed with the public interest firmly in mind . . . That public interest cannot be served, the Act recognizes, if defendants may opt out of the Act entirely.” As a result, the Court ruled, a defendant cannot waive rights under the act for all time. Zedner’s case was sent back to trial court for dismissal, but the Court said it was up to the trial judge to decide if it should be dismissed with or without “prejudice.” If dismissed “with prejudice,” the prosecution would be over, but if it is done “without prejudice,” prosecutors would be able to try Zedner again. Alito’s offending paragraph cites several instances in the House and Senate reports accompanying passage of the law in 1974 that emphasized the public interest in speedy trials. Scalia wrote: “It may seem that there is no harm in using committee reports and other such sources when they are merely in accord with the plain meaning of the Act. But this sort of intellectual piling-on has addictive consequences.” Among other things, Scalia said it could lead to the belief that a single senator’s statement about the meaning of a law represents the views of the entire Congress. “There is no basis either in law or reality for this naive belief,” Scalia said.
Tony Mauro can be contacted at [email protected].

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