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SUPREME COURT OF THE UNITED STATES
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No. 91-1353
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THOMAS F. CONROY, PETITIONER v. WALTER
ANISKOFF, Jr., et al.
on writ of certiorari to the supreme judicial
court of maine
[March 31, 1993]

  Justice Scalia, concurring in the judgment.
  The Court begins its analysis with the observation:
-The statutory command in 525 is unambiguous,
unequivocal, and unlimited.-  Ante, at 3.  In my view,
discussion of that point is where the remainder of the
analysis should have ended.  Instead, however, the Court
feels compelled to demonstrate that its holding is
consonant with legislative history, including some dating
back to 1917-a full quarter century before the provision
at issue was enacted.  That is not merely a waste of
research time and ink; it is a false and disruptive lesson
in the law.  It says to the bar that even an -unambiguous
[and] unequivocal- statute can never be dispositive; that,
presumably under penalty of malpractice liability, the
oracles of legislative history, far into the dimmy past,
must always be consulted.  This undermines the clarity
of law, and condemns litigants (who, unlike us, must pay
for it out of their own pockets) to subsidizing historical
research by lawyers.
  The greatest defect of legislative history is its
illegitimacy.  We are governed by laws, not by the
intentions of legislators.  As the Court said in 1844:  -The
law as it passed is the will of the majority of both houses,
and the only mode in which that will is spoken is in the
act itself . . . .-  Aldridge v. Williams, 3 How. 9, 24
(emphasis added).  But not the least of the defects of
legislative history is its indeterminacy.  If one were to
search for an interpretive technique that, on the whole,
was more likely to confuse than to clarify, one could
hardly find a more promising candidate than legislative
history.  And the present case nicely proves that point.
  Judge Harold Leventhal used to describe the use of
legislative history as the equivalent of entering a crowded
cocktail party and looking over the heads of the guests for
one's friends.  If I may pursue that metaphor: The
legislative history of 205 of the Soldiers' and Sailors'
Civil Relief Act contains a variety of diverse personages,
a selected few of whom-its -friends--the Court has
introduced to us in support of its result.  But there are
many other faces in the crowd, most of which, I think, are
set against today's result.
  I will limit my exposition of the legislative history to
the enactment of four statutes:
1. The Soldiers' and Sailors' Civil Relief Act of 1918
(1918 Act), 40 Stat. 440;
2. The Soldiers' and Sailors' Civil Relief Act of 1940
(1940 Act or Act), 54 Stat. 1178;
3. The Soldiers' and Sailors' Civil Relief Act
Amendments of 1942 (1942 Amendments), 56 Stat.
769;
4. The Selective Service Act of 1948, 62 Stat. 604.
That, of course, cannot be said to be the -complete
legislative history- relevant to this provision.  Compare
ante, at 4.  One of the problems with legislative history
is that it is inherently open-ended.  In this case, for
example, one could go back further in time to examine the
Civil War-era relief Acts, many of which are in fact set
forth in an appendix to the House Report on the 1918
Act, see Appendix A, H. R. Rep. No. 181, 65th Cong., 1st
Sess., 18-32 (1917) (hereinafter 1917 House Report).  Or
one could extend the search abroad and consider the
various foreign statutes that were mentioned in that same
House Report.  See id., at 4, 13-14 (discussing English
and French enactments).  Those additional statutes might
be of questionable relevance, but then so too are the 1918
Act and the 1940 Act, neither of which contained a
provision governing redemption periods.  Nevertheless, I
will limit my legislative history inquiry to those four
statutes for the simple reason that that is the scope
chosen by the Court.
  The 1918 Act appears to have been the first
comprehensive national soldiers' relief Act.  See 55 Cong.
Rec. 7787 (1917).  The legislative history reveals that
Congress intended that it serve the same vital
purpose-providing -protection against suit to men in
military service--as various state statutes had served
during the Civil War.  1917 House Report 3; see also id.,
at 18-32 (Appendix A) (setting forth text of numerous
state soldiers' relief Acts from the Civil War era).
Congress intended, however, that the 1918 Act should
differ from the Civil War statutes -in two material
respects.-  55 Cong. Rec. 7787 (1917) (statement of Rep.
Webb).  The first was that, being a national statute, it
would produce a disposition -uniform throughout the
Nation.-  1917 House Report 3; see also 55 Cong. Rec.
7787 (1917) (statement of Rep. Webb).  But it is the
second difference which has particular relevance to the
Court's ruling today:
-The next material difference between this law and
the various State laws is this, and in this I think you
will find the chief excellence of the bill which we
propose:  Instead of the bill we are now considering
being arbitrary, inelastic, inflexible, the discretion as
to dealing out even-handed justice between the
creditor and the soldier, taking into consideration the
fact that the soldier has been called to his country's
cause, rests largely, and in some cases entirely, in the
breast of the judge who tries the case.-  Id., at 7787
(statement of Rep. Webb).
This comment cannot be dismissed as the passing remark
of an insignificant Member, since the speaker was the
Chairman of the House Judiciary Committee, the
committee that reported the bill to the House floor.
Moreover, his remarks merely echoed the House Report,
which barely a page into its text stated:  -We cannot
point out too soon, or too emphatically, that the bill is not
an inflexible stay of all claims against persons in military
service.-  1917 House Report 2.  Congress intended to
depart from the -arbitrary and rigid protection- that had
been provided under the Civil War-era stay laws, ibid.,
which could give protection to men -who can and should
pay their obligations in full,-  id., at 3.  It is clear,
therefore, that in the 1918 Act Congress intended to
create flexible rules that would permit denial of protection
to members of the military who could show no hardship.
  The 1918 Act expired by its own terms six months after
the end of the First World War.  See 1918 Act, 603, 40
Stat. 449.  The 1940 Act was adopted as the Nation
prepared for its coming participation in the Second World
War.  Both the House and Senate Reports described it as
being, -in substance, identical with the [1918 Act].-  H. R.
Rep. No. 3001, 76th Cong., 3d Sess., 3 (1940); S. Rep. No.
2109, 76 Cong., 3d Sess., 4 (1940).  Moreover, in Boone
v. Lightner, 319 U. S. 561, 565 (1943), we acknowledged
that the 1940 Act was -a substantial reenactment- of the
1918 Act, and looked to the legislative history of the 1918
Act for indications of congressional intent with respect to
the 1940 Act.  Relying on that legislative history, we
found that -the very heart of the policy of the Act- was
to provide -judicial discretion . . . instead of rigid and
undiscriminating suspension of civil proceedings.-  Ibid.
  Although the Court never mentions this fact, it is clear
that under the 1918 and 1940 Acts a redemption period
would not be tolled during the period of military service.
In both enactments, 205 governed only statutes of
limitations and did not mention redemption periods.
Moreover, in Ebert v. Poston, 266 U. S. 548 (1925), this
Court held that neither 205 nor 302, which provides
protection from foreclosures, conferred on a court any
power to extend a statutory redemption period.  Congress
overturned the rule of Ebert in the 1942 Amendments, a
central part of the legislative history that the Court
curiously fails to discuss.  Section 5 of those amendments
rewrote 205 of the Act to place it in its current form,
which directly addresses the redemption periods.  See 56
Stat. 770-771; ante, at 1, n. 1 (setting forth current
version of 205).  The crucial question in the present case
(if one believes in legislative history) is whether Congress
intended this amendment to be consistent with the -heart
of the policy of the Act--conferring judicial discretion-or
rather intended it to confer an unqualified right to extend
the period of redemption.  Both the House and Senate
Reports state that, under the amended 205, -[t]he
running of the statutory period during which real property
may be redeemed after sale to enforce any obligation, tax,
or assessment is likewise tolled during the part of such
period which occurs after enactment of the [1942
Amendments].-  H. R. Rep. No. 2198, 77th Cong., 2d
Sess., 3-4 (1942); S. Rep. No. 1558, 77th Cong., 2d Sess.,
4 (1942) (emphasis added).  The Reports also state that
-[a]lthough the tolling of such periods is now within the
spirit of the law, it has not been held to be within the
letter thereof- (citing Ebert).  H. R. Rep. No. 2198, supra,
at 4; S. Rep. No. 1558, supra, at 4.  These statements
surely indicate an intention to provide a tolling period for
redemptions similar to that already provided for statutes
of limitations-which, on the basis of the legislative
history I have described, can be considered discretionary
rather than rigid.  The existence of discretionary authority
to suspend the tolling is also suggested by the House floor
debates.  Responding to questions, Representative
Sparkman (who submitted the Report on behalf of the
House Committee on Military Affairs) agreed that, while
the bill -pertains to all persons in the armed forces,- a
man -serving in the armed forces for more money than he
got in civil life . . . is not entitled to any of the benefits
of the provisions of this bill.-  88 Cong. Rec. 5364, 5365
(1942).  In response to that last comment, another
representative inquired further whether -[t]his is to take
care of the men who are handicapped because of their
military service.-  Id., at 5365.  Representative Sparkman
answered affirmatively.  Ibid.  He confirmed that
Congress did not intend to abandon the discretionary
nature of the scheme: -With reference to all these matters
we have tried to make the law flexible by lodging
discretion within the courts to do or not to do as justice
and equity may require.-  Ibid.  And finally, at a later
point in the debates, Representative Brooks made clear
that the Act was intended to remedy the prejudice
resulting from compelled military service:  -We feel that
the normal obligations of the man contracted prior to
service induction should be suspended as far as
practicable during this tour of duty, and that the soldier
should be protected from default in his obligations due to
his inability to pay caused by reduction in income due to
service.-  Id., at 5369.
  The final component of the legislative history that I
shall treat is the extension of the 1940 Act in the
Selective Service Act of 1948, 62 Stat. 604.  The Court
misconstrues Congress's intent in this enactment in two
respects.  First, it asserts that -because Congress extended
the life of the Act indefinitely in 1948, well after the end
of World War II, the complete legislative history confirms
a congressional intent to protect all military personnel on
active duty, just as the statutory language provides.-
Ante, at 4.  It is true enough that the War was over; but
the draft was not.  The extension of the 1940 Act was
contained in the Selective Service Act of 1948, which
required military service from citizens.  And it would
appear to have been contemplated that the -life of the
Act- would be extended not -indefinitely,- as the Court
says, ante, at 4, but for the duration of the draft.  See
H. R. Rep. No. 1881, 80th Cong., 2d Sess., 12 (1948)
(extension was intended to -continu[e] the Soldiers' and
Sailors' Civil Relief Act of 1940 in its application to the
personnel inducted or entering the armed forces during
the life of this act-).  The legislative history states that
Congress intended to extend the provisions of the 1940
Act -to persons serving in the armed forces pursuant to
this act.-  S. Rep. No. 1268, 80th Cong., 2d Sess., 21
(1948) (emphasis added).  Career members of the military
such as petitioner would not have been serving -pursuant
to- the Selective Service Act, since they were expressly
excepted from its service requirement.  See Selective
Service Act of 1948 6(a), 62 Stat. 609.  In this focus
upon draftees, the legislative history of the 1948 extension
merely replicates that of the 1940 Act and the 1942
Amendments.  The former was enacted on the heels of the
Selective Training and Service Act of 1940, 54 Stat. 885,
and was introduced on the Senate floor with the
explanation that it would provide -relief . . . to those who
are to be inducted into the military service for training
under [the Selective Training and Service Act of 1940].-
86 Cong. Rec. 10292 (1940) (statement of Rep. Overton)
(emphasis added).  In the debate on the 1942
Amendments, Representative Sparkman noted that
-hundreds of thousands, and even millions, have been
called- into military service since the enactment of the
1940 Act, and admonished his colleagues to -keep
uppermost in your mind at all times the fact that the
primary purpose of this legislation is to give relief to the
boy that is called into service.-  88 Cong. Rec. 5364
(1942).  In other words, the legislative history of the 1948
extension, like that of the Act itself and of the 1942
Amendments, suggests an intent to protect those who
were prejudiced by military service, as many who were
drafted would be.
  The Court also errs in mistaking the probable effect of
Congress's presumed awareness of our earlier opinions in
Ebert and Boone.  See ante, at 5-6.  In Boone, we stated
that the Act -is always to be liberally construed to protect
those who have been obliged to drop their own affairs and
take up the burdens of the nation,- 319 U. S., at 575
(emphasis added), but that discretion was vested in the
courts to insure that the immunities of the Act are not
put to -unworthy use,- ibid., since -the very heart of the
policy of the Act- was to provide -judicial discretion . . .
instead of rigid and undiscriminating suspension of civil
proceedings,- id., at 565.  Awareness of Boone would likely
have caused Congress to assume that the courts would
vindicate -the very heart of the policy of the Act- by
requiring a showing of prejudice.  The Court argues,
however, that Congress would also have been aware that
Ebert recognized the -carefully segregated arrangement of
the various provisions- of the Act, ante, at 5.  It is
already an extension of the normal convention to assume
that Congress was aware of the precise reasoning (as
opposed to the holding) of earlier judicial opinions; but it
goes much further to assume that Congress not only
knew, but expected the courts would continue to follow,
the reasoning of a case (Ebert) whose holding Congress
had repudiated six years earlier.  See supra, at 6.  In any
event, the Court seeks to use Ebert only to establish that
Congress was aware that this Court was aware of the
-carefully segregated arrangement- of the Act.  That adds
little, if anything, to direct reliance upon the plain
language of the statute.
  After reading the above described legislative history, one
might well conclude that the result reached by the Court
today, though faithful to law, betrays the congressional
intent.  Many have done so.  Indeed, as far as I am
aware, every court that has chosen to interpret 205 in
light of its legislative history rather than on the basis of
its plain text has found that Congress did not intend 205
to apply to career members of the military who cannot
show prejudice or hardship.  See, in addition to the court
below, Pannell v. Continental Can Co., 554 F. 2d 216,
224-225 (CA5 1977); Bailey v. Barranca, 83 N. M. 90,
94-95, 488 P. 2d 725, 729-730 (1971); King v. Zagorski,
207 So. 2d 61, 66-67 (Fla. App. 1968).  The only scholarly
commentary I am aware of addressing this issue
concludes:  -An examination of the legislative history of
the Act shows that the prevailing interpretation of section
205 [i.e., the Court's interpretation] is not consistent with
congressional intent.-  Folk, Tolling of Statutes of
Limitations under Section 205 of the Soldiers' and Sailors'
Civil Relief Act, 102 Mil. L. Rev. 157, 168 (1983).  Finally,
even the Government itself, which successfully urged in
this case the position we have adopted, until recently
believed, on the basis of legislative history, the contrary.
See Townsend v. Secretary of Air Force, No. 90-1168, 1991
U. S. App. LEXIS 26578, *5-*7 (CA4, Nov. 12, 1991);
Brief for United States as Amicus Curiae on Pet. for Cert.
17, n. 19 (noting Government's position in Townsend that
205 requires a showing of prejudice); see also Bickford
v. United States, 656 F. 2d 636, 640 (Ct. Cl. 1981) (-The
Government argues that the statute does not mean what
it says because the legislative history evinces Congress'
intent to limit the applicability of [205] to those
servicemen engaged in battle or who are otherwise
handicapped from asserting their legal claims-).
  I confess that I have not personally investigated the
entire legislative history-or even that portion of it which
relates to the four statutes listed above.  The excerpts I
have examined and quoted were unearthed by a hapless
law clerk to whom I assigned the task.  The other
Justices have, in the aggregate, many more law clerks
than I, and it is quite possible that if they all were
unleashed upon this enterprise they would discover, in the
legislative materials dating back to 1917 or earlier, many
faces friendly to the Court's holding.  Whether they would
or not makes no difference to me-and evidently makes
no difference to the Court, which gives lipservice to
legislative history but does not trouble to set forth and
discuss the foregoing material that others found so
persuasive.  In my view, that is as it should be, except
for the lipservice.  The language of the statute is entirely
clear, and if that is not what Congress meant then
Congress has made a mistake and Congress will have to
correct it.  We should not pretend to care about legislative
intent (as opposed to the meaning of the law), lest we
impose upon the practicing bar and their clients
obligations that we do not ourselves take seriously.