Tuesday, July 10, 2018
Judge Brett Kavanaugh's scholarly writing repeatedly raises the now well-known umpire analogy and emphasizes the aspiration to judicial "neutrality." I focus here on law reviews, and in particular some of his later pieces on statutory and constitutional rights interpretation, leaving the earlier separation of powers pieces to others.
For example, in his review essay, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (reviewing CJ. Robert Katzmann's book on statutory interpretation), he wrote: "The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges." Likewise, in Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017), Kavanaugh said this: "I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case." And he has a third short piece, The Judge As Umpire: Ten Principles, in a recent issue of the Catholic University Law Review.
It's a metaphor that has been used and criticized before. Perhaps the most prominent relatively recent example is in the confirmation hearings of CJ. John Roberts, who was also fond of the metaphor. But I think Judge Kavanaugh means something fairly specific by it, and that it has more concrete implications for the way in which he believes the prevailing methods of statutory and constitutional interpretation are flawed and should change.
Kavanaugh's primary objection in this area does not involve the issue of textualism and purposivism. He is quite clear that he is a textualist, and he notes in his review essay that CJ. Katzmann also claims to be a textualist. Instead, his objection concerns the binary of clarity and ambiguity. He raises two problems (previously discussed by Professor Ward Farnsworth): (1) how clear must the text be to be deemed clear? 80% clear? 50% clear? Less? More? (2) how does a judge know what level of clarity a text actually has achieved? Because these threshold issues are indeterminate, the interpreting judge has too few rules for getting to the point where he can determine which of the two binaries--clear or ambiguous--to settle on. Kavanaugh argues that in consequence a judge's predisposition toward textualism or purposivism does the work here. It orients the judge either toward or against finding ambiguity, and then it's off and running with the substantive canons of interpretation.
Kavanaugh offers a solution this threshold issue: rather than forcing the judge to choose one of the two binaries from the get-go, he argues that the judge should offer her "best reading of the statute," guided by some semantic canons and context. There are some problems with this proposal, in my view, primary among which is that I am uncertain that this sort of approach solves the issue of predisposition toward textualism or purposivism. An example: Kavanaugh does not care for the semantic canon, eiusdem generis, which holds that the last general term in a sequence should be interpreted in light of previous, more specific terms ("dogs, pigs, sheep, and other animals" should be read to include pigs and horses but not amoebas and tapirs). Kavanaugh says that "other animals" should instead mean any or all other animals, and to apply eiusdem generis allows a judge to, as Justice Kagan put it, take it upon herself to find the "common denominator." But I'm not sure I agree on the merits, and at the very least I think this example illustrates some problems with Kavanaugh's "best reading of the statute" approach, one which he agrees must make use of context.
The point of this post, though, is to connect his substantive comments to his larger umpire analogy. The trouble with the current binary regime of clarity/ambiguity is that it is does not offer judges sufficiently clear, basic rules for interpreting statutes. It does not stimulate judges to aspire to neutrality. It instead stimulates the opposite: a smuggling in, under the pretense of simply "finding" clarity/ambiguity, of the judge's predispositions toward textualism or purposivism. And judges are also seen to be doing that smuggling by the general public.
Kavanaugh makes a parallel criticism of constitutional interpretation. Here, one of his primary targets is the tiers of scrutiny in the evaluation of individual rights as against government interests. The problem with the 1950s-era invention of the tiers of scrutiny (substantial burdens, compelling interests, rational bases, narrow tailoring, etc.) is that they are, at best, "rather indeterminate," and at worst, "empty of real, determinate, objective meaning." They offer no, or very little, transparent guidance to the judicial interpreter. At best, they are "mood-setters." And the mood that they set is the mood the judge happens to be in about the right at issue. So that judges applying these standards are invited to smuggle in other reasons for ruling as they do. And they are seen to do so by all of the rest of us, since it is in the nature of the tiers to push judges in this direction.
Or consider the issue of exceptions to certain constitutional rights--the right to free speech, for example, or the right to keep and bear arms. Is it any surprise, says Kavanaugh, that the tiers of scrutiny can offer no help in resolving when to find such exceptions? Worse still, is it any surprise that when judges apply the tiers of scrutiny purportedly to find exceptions to constitutional rights, they are doing so in ways that are, and appear to be, non-neutral--non umpire-like? There are other judges who have made similar claims about the tiers (see, most recently, Justice Thomas's dissent in Whole Woman's Health v. Hellerstedt). But one can see a critical unity in Kavanaugh's objections to the prevailing methods of statutory and constitutional interpretation: both suffer from the same problems and need similar correctives.
Unlike in the statutory interpretation context, Kavanaugh does not offer a developed solution to this problem. But perhaps the most interesting part of his argument (to me, at least) is his view that it would be preferable to rely on historical and traditional limits on particular rights to find exceptions than to rely on the tiers of scrutiny to do so. He says: "At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases." And his Second Amendment dissent in Heller v. DC (DC Cir 2011) suggested just such an approach. He also raised "history and tradition," together with "precedent," as important for his judicial method in his acceptance last night.
We'll have to wait and see if and how these threads come together if he is confirmed.