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Alito Opinion Rules for Criminal Defendant, Draws Scalia Concurrence

Justice Alito’s second opinion was handed down today: Zedner v. United States. Like his first opinion, it ruled in favor of a criminal defendant. The opinion was 9-0, with a partial concurrence in the judgment filed by Justice Scalia objecting to Alito’s reliance on legislative history.

Zedner involves the Speedy Trial Act, a law that (subject to exceptions) requires federal criminal trials to happen within a short window after a case has been charged. In Zedner, the Court held that a criminal defendant can’t make a prospective waiver of his Speedy Trial Act rights. The gist of the opinion is that while there may be cases in which neither the prosecution nor the defense want to have a quick trial, the text and structure of the Speedy Trial Act does not allow such blanket waivers without court findings because the law designed to further the public interest in speedy trials. The Court also holds that judicial estoppel and harmless error standards don’t bar relief for the defendant, as the application of these doctrines would defeat the purpose of the statutory rule, and then remands to let the district court decide whether the dismissal should be with or without prejudice.

I thought this was a good opinion. I’m not an expert in the Speedy Trial Act, but I thought the opinion made a lot of sense and covered the bases well.

For court watchers who aren’t into the Speedy Trial Act — that is, most readers of this blog — Zedner is probably most interesting for the fact that Justice Alito included a section on legislative history and Justice Scalia filed a concurrence objecting to that section and refusing to join it. Or, perhaps more to the point, the opinion is interesting because Alito wanted to keep the discussion of legislative history in his opinion, and declined to accomodate Justice Scalia’s request to take it out.

What can we read into that? It’s hard to say. Alito wasn’t a hard-core textualist as a circuit judge. My own read on his circuit court opinions is that while Alito believes in the primacy of text and is aware of the potential for abuse in reliance on legislative history, he isn’t one to feel the need to safeguard against that abuse by never relying on legislative history regardless of the context. And in the Zedner case, Alito’s reliance on legislative history is pretty harmless: the commitee reports from 1974 and 1979 confirm the Court’s take the statutory structure.

Alito’s use of legislative history may surprise those who were expecting him to be a Scalia clone. But as I and others have been saying for a long time, Alito isn’t a Scalia clone.