U.S. v. R. L. C., 503 U.S. 291 (1992)

Almost two decades before Brown v. Entertainment Merchants Assn….on March 4, 1992, a little more than four months after Thomas assumed office and approximately halfway through his first term, this is the first case in which Scalia and Thomas each write separate opinions which are not joined in full by the other.

Souter writes the opinion, joined in full by Rehnquist, White, and Stevens, and in part by Scalia, Kennedy, and Thomas.

Scalia files an opinion concurring in part and concurring in the judgment, joined in full by Thomas (along with Kennedy).

Thomas files an opinion concurring in part and in the judgment, joined by no other justice.

Thomas writes separately to emphasize what he views as a limitation on the operation of the rule of lenity.  The rule of lenity is a tool of statutory construction under which a court, in construing an ambiguous criminal statute, should resolve the ambiguity in favor of the defendant.  Thomas views the rule of lenity as a tool of last resort -- to be used only if the “innumerable rules of construction” are not “powerful enough to make clear an otherwise ambiguous penal statute.”   A defendant would likely be less favored with this limitation on the rule of lenity than without it.  After the court has “seized every thing from which aid can be derived” (except, of course, legislative history), fewer statutes would be found ambiguous, and thus fewer would trigger the rule of lenity.  Thomas does not justify this limitation except to cite to the case reaffirming it, Chapman v. U.S., 500 U.S. 453 (1991). It is not surprising that Chapman, decided the term before Thomas joined the Court, was not written by Scalia (but by Rehnquist, although Scalia did join in full and did not write his own opinion).  Thomas indicates that he is willing to go further than Scalia to come to the rescue of ambiguous text -- and the Congress that enacted it -- and thus save the statute from the rule of lenity; he indicates he is more willing to resort to the “well established principles of statutory construction” in order to save the statute from one of those principles.