562
Scalia, J., dissenting
have no authority to "rewrite [the] statute and give it an effect altogether different" from what Congress agreed to. Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330, 362 (1935) (quoted in Carter v. Carter Coal Co., 298 U. S. 238, 313 (1936)).
* * *
It is illuminating to speculate how these cases would have been decided if Congress had enacted § 504(a)(16) without its proviso (prescribing only the general ban against "litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system"), and if the positions of the parties before us here were reversed. If the LSC-funded lawyers were here arguing that the statute permitted representation of individual welfare claimants who did not challenge existing law, I venture to say that the Court would endorse their argument—perhaps with stirring language about the importance of aid to welfare applicants and the Court's unwillingness to presume without clear indication that Congress would want to eliminate it. And I have little doubt that in that context the Court would find its current First Amendment musings as unpersuasive as I find them today.
Today's decision is quite simply inexplicable on the basis of our prior law. The only difference between Rust and the present cases is that the former involved "distortion" of (that is to say, refusal to subsidize) the normal work of doctors, and the latter involves "distortion" of (that is to say, refusal to subsidize) the normal work of lawyers. The Court's decision displays not only an improper special solicitude for our own profession; it also displays, I think, the very fondness for "reform through the courts"—the making of innumerable social judgments through judge-pronounced constitutional imperatives—that prompted Congress to restrict publicly funded litigation of this sort. The Court says today, through an unprecedented (and indeed previously rejected) interpretation of the First Amendment, that we will not allow this
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