The full text of this Book Review may be found by clicking on the PDF link below.
Statutory interpretation has improved dramatically over the last generation, thanks to the extraordinary influence of Justice Scalia. Statutory text matters much more than it once did. If the text is sufficiently clear, the text usually controls. The text of the law is the law. As Justice Kagan recently stated, “we’re all textualists now.” By emphasizing the centrality of the words of the statute, Justice Scalia brought about a massive and enduring change in American law.
But more work remains. As Justice Scalia’s separate opinions in recent years suggest, certain aspects of statutory interpretation are still troubling. In my view, one primary problem stands out. Several substantive principles of interpretation — such as constitutional avoidance, use of legislative history, and Chevron — depend on an initial determination of whether a text is clear or ambiguous. But judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.
The upshot is that judges sometimes decide (or appear to decide) high-profile and important statutory cases not by using settled, agreed-upon rules of the road, but instead by selectively picking from among a wealth of canons of construction. Those decisions leave the bar and the public understandably skeptical that courts are really acting as neutral, impartial umpires in certain statutory interpretation cases.
The need for better rules of the road is underscored by a recent book written by Robert Katzmann, the very distinguished Chief Judge of the Second Circuit. I know Chief Judge Katzmann from our service together on the Judicial Branch Committee of the Judicial Conference, where he served for many years as Chairman by appointment of the Chief Justice. Chief Judge Katzmann is one of America’s finest judges and a true role model for me and many others, both in how he approaches his job and in how he seeks to improve the system of justice.
His new book Judging Statutes is a pleasure to read. It is succinct and educational. Chief Judge Katzmann’s goal is to show that various tools of statutory interpretation, especially legislative history, can enhance judges’ understanding of statutory meaning and allow them “to be faithful to the work of the people’s representatives memorialized in statutory language” (p. 105).
As would be natural with any two judges on a topic of this kind, I agree with some parts of Chief Judge Katzmann’s book and not with others. But even where I disagree, I have learned a great deal.
Every judge, lawyer, law professor, and law student who interprets statutes — which is to say every judge, lawyer, law professor, and law student — should read this book carefully. To paraphrase Justice Frankfurter: read the book, read the book, read the book.
Judging Statutes has caused me to think even more deeply about statutory interpretation and about what judges should be trying to achieve when we confront statutory cases. For me, one overarching goal is to make judging a neutral, impartial process in all cases — not just statutory interpretation cases. Like cases should be treated alike by judges of all ideological and philosophical stripes, regardless of the subject matter and regardless of the identity of the parties to the case.
To be sure, some may conceive of judging more as a partisan or policymaking exercise in which judges should or necessarily must bring their policy and philosophical predilections to bear on the text at hand.
I disagree with that vision of the federal judge in our constitutional system. 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.
In my view, this goal is not merely personal preference but a constitutional mandate in a separation of powers system. Article I assigns Congress, along with the President, the power to make laws. Article III grants the courts the “judicial Power” to interpret those laws in individual “Cases” and “Controversies.” When courts apply doctrines that allow them to rewrite the laws (in effect), they are encroaching on the legislature’s Article I power.
But the vision of the judge as umpire raises a natural question: how can we move toward that ideal in our judicial system, where judges come from many different backgrounds and may have a variety of strong ideological, political, and policy predispositions?
To be candid, it is probably not possible in all cases, depending on the nature of the legal inquiry. After all, on occasion the relevant constitutional or statutory provision may actually require the judge to consider policy and perform a common law–like function.
But in most statutory cases, the issue is one of interpretation. To assist the interpretive process, judges over time have devised many semantic and substantive canons of construction — what we might refer to collectively as the interpretive rules of the road. To make judges more neutral and impartial in statutory interpretation cases, we should carefully examine the interpretive rules of the road and try to settle as many of them in advance as we can. Doing so would make the rules more predictable in application. In other words, if we could achieve more agreement ahead of time on the rules of the road, there would be many fewer disputed calls in actual cases. That in turn would be enormously beneficial to the neutral and impartial rule of law, and to the ideal and reality of a principled, nonpartisan judiciary.
With that objective in mind, I will advance one overarching argument in this Book Review. A number of interpretive canons of statutory interpretation depend on an initial evaluation of whether the statutory text is clear or ambiguous. But because it is so difficult to make those clarity versus ambiguity determinations in a coherent, evenhanded way, courts should reduce the number of canons of construction that depend on an initial finding of ambiguity. Instead, courts should seek the best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and applying the agreed-upon semantic canons. Once they have discerned the best reading of the text in that way, they can depart from that baseline if required to do so by any relevant substantive canons — for example, the absurdity doctrine.
To be clear, I fully appreciate that disputed calls will always arise in statutory interpretation. Figuring out the best reading of the statute is not always an easy task. I am not a modern-day Yogi Berra, who once purportedly said that there would be no more close calls if we just moved first base.
But the current situation in statutory interpretation, as I see it, is more akin to a situation where umpires can, at least on some pitches, largely define their own strike zones. My solution is to define the strike zone in advance much more precisely so that each umpire is operating within the same guidelines. If we do that, we will need to worry less about who the umpire is when the next pitch is thrown.
That’s just too hard, some might argue. Statutory interpretation is an inherently complex process, they say. It’s all politics anyway, others contend. I have heard the excuses. I’m not buying it. In my view, it is a mistake to think that the current mess in statutory interpretation is somehow the natural and unalterable order of things. Put simply, we can do better in the realm of statutory interpretation. And for the sake of the neutral and impartial rule of law, we must do better.
* Judge, United States Court of Appeals for the District of Columbia Circuit.