Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 37 (1996)

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Cite as: 518 U. S. 415 (1996)

Scalia, J., dissenting

thority "would enable that court, with or without a new jury, to re-examine the whole facts, which had been settled by a previous jury." United States v. Wonson, 28 F. Cas. 745, 750 (No. 16,750) (CC Mass.).1

The second clause of the Amendment responded to that concern by providing that "[i]n [s]uits at common law . . . no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." U. S. Const., Amdt. 7. The Reexamination Clause put to rest "apprehensions" of "new trials by the appellate courts," Wonson, 28 F. Cas., at 750, by adopting, in broad fashion, "the rules of the common law" to govern federal-court interference with jury determinations.2 The

1 This objection was repeatedly made following the Constitutional Convention, see, e. g., Martin, Genuine Information, in 3 Records of the Federal Convention of 1787, pp. 172, 221-222 (M. Farrand ed. 1911); Gerry, Reply to a Landholder, id., at 298, 299, and at the ratifying conventions in the States, see, e. g., 3 J. Elliot, Debates on the Federal Constitution 525, 540-541, 544-546 (1863) (Virginia Convention, statements of Mr. Mason and Mr. Henry); 4 id., at 151, 154 (North Carolina Convention, statements of Mr. Bloodworth and Mr. Spencer).

Prior to adoption of the Amendment, these concerns were addressed by Congress in the Judiciary Act of 1789, 1 Stat. 73, which expressly directed, in providing for "reexamin[ation]" of civil judgments "upon a writ of error," that "there shall be no reversal in either [the Circuit or Supreme Court] . . . for any error of fact." § 22, 1 Stat. 84-85. That restriction remained in place until the 1948 revisions of the Judicial Code. See 62 Stat. 963, 28 U. S. C. § 2105 (1946 ed., Supp. II).

2 The Amendment was relied upon at least twice to prevent actual new trials. In Wonson itself, Justice Story rejected the United States' claim of right to retry, on appeal, a matter unsuccessfully put before a jury in the District Court—notwithstanding acceptance of such a practice under local law. The court based its ruling on statutory grounds, but its interpretation of its statutory jurisdiction was dictated by its view that a contrary interpretation would contravene the Seventh Amendment. 28 F. Cas., at 750. And in Justices v. Murray, 9 Wall. 274, 281 (1870), this Court relied on Wonson in invalidating under the Seventh Amendment a federal habeas statute that provided for removal of certain judgments from state courts for purposes of retrial in federal court.

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