Today’s SCOTUS opinon in Tellabs, Inc. v. Makor Issues & Rights, Ltd., No. 06-484, slip op. (U.S. June 21, 2007), contains a lively exchange between Justices Stevens (in dissent) and Scalia (in concurrence). As usual, I find Justice Scalia’s argument the more logical, eloquent, and persuasive.


Justice Stevens thought Justice Scalia’s concurrence to be “clearly wrong,” explaining:

The meaning of a statute can only be determined on a case by case basis and will, in each case, turn differently on the clarity of the statutory language, its context, and the intent of its drafters. Here, in my judgment, a probable-cause standard is more faithful to the intent of Congress, as expressed in both the specific pleading requirement and the statute as a whole, than the more defendant-friendly interpretation that Justice Scalia prefers. He is clearly wrong in concluding that in divining the meaning of this term, we can merely “read the language for what it says,” and that it is susceptible to only one reading. He argues that we “must be content to give ’strong inference’ its normal meaning,” and yet the “normal meaning” of a term such as “strong inference” is surely in the eye of the beholder. As the Court’s opinion points out, Courts of Appeals have divided on the meaning of the standard, and today, the Members of this Court have done the same. Although Justice Scalia may disagree with the Court’s reading of the term, he should at least acknowledge that, in this case, the term itself is open to interpretation.

Id. at 2 n.1 (Stevens, J., dissenting).

Justice Scalia, meanwhile, takes his longtime colleague’s logic to task:

The Court and the dissent criticize me for suggesting that there is only one reading of the text. They are both mistaken. I assert only that mine is the natural reading of the statute (i.e., the normal reading), not that it is the only conceivable one. The Court has no standing to object to this approach, since it concludes that, in another respect, the statute admits of only one natural reading, namely, that competing inferences must be weighed because the strong-inference requirement “is inherently comparative.” As for the dissent, it asserts that the statute cannot possibly have a natural and discernible meaning, since “courts of appeals” and “Members of this Court” have divided over the question. It was just weeks ago, however, that the author of the dissent, joined by the author of today’s opinion for the Court, concluded that a statute’s meaning was “plain,” even though the Courts of Appeals and Members of this Court divided over the question. Was plain meaning then, as the dissent claims it is today, “in the eye of the beholder”?

Id. at 3-4 (Scalia, J., concurring).

Of interest perhaps only to me, both Justices refer to the “Courts of Appeals” instead of the “Courts of Appeal.” I guess when you’re SCOTUS, you can phrase things however you wish.

One last aside, do you realize that Justice Stevens was nominated by President Ford, and was born in 1920 before the Great Depression?

Thx to the WSJ LawBlog and Justice Scalia