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03/19/2016

Lawrence Solan on Lockhart v. U.S. and the Last Antecedent
Michael Ramsey

At Balkinization, Lawrence Solan: With Scalia Gone, Who’s Wearing the Thick Grammarian’s Spectacles Now?  It begins:

In 1991, the Supreme Court decided West Virginia University Hospitals v. Casey (opinions here).  The case determined that the right to recover “a reasonable attorney’s fee” if successful in a civil rights case against a state did not include the right to recover the cost of expert witness services.  Writing for a majority of six, Justice Scalia focused on the importance of interpreting the United States Code as a coherent body of law, listing many examples of fee shifting statutes that do mention expert fees, and inferring that their absence in the civil rights law implies that Congress did not intend for the winning party to recover them. 

Justice Stevens dissented.  The fee-shifting statute was actually a congressional reaction to an earlier stingy ruling by the Supreme Court.  Offering once again the least generous interpretation of the civil rights law, Stevens argued, would undermine the congressional effort to override the Court.  Stevens then noted that congressional overrides of the Supreme Court come primarily when “the Court has put on its thick grammarian's spectacles and ignored the available evidence of congressional purpose and the teaching of prior cases construing a statute.”   And that is exactly what happened.  Congress quickly overrode this decision too, making it clear that expert fees were to be recoverable by a winning plaintiff in a civil rights case.

[Historical note: as a clerk, I worked on West Virginia University Hospitals v. Casey for Justice Scalia.  So thanks, Professor Solan, for keeping memory of the case alive.]

Now that Justice Scalia is gone, who has the spectacles?  We got a surprising hint last week when Justices Sotomayor and Kagan fought over the application of grammatical principles in Lockhart v. United States (here).  It appears that all of the justices will continue in Scalia’s tradition of close textual analysis, although in this case neither side did it very well. ...

[With continuing discussion of the rule of the last antecedent in Lockhart.]