Judge Kavanaugh: Interpretive Principles as a Way of Life

by Jennifer Mascott — Monday, July 2, 2018@jennmascott

This is an atypical post for me. Usually I blog here as an academic—or, more precisely, as just another Ad Law nerd.

But today I thought I’d take a stab at writing in a different capacity—as former law clerk to a beloved former boss. In 2006, Judge Brett Kavanaugh hired me as his first law clerk—that is, by 30 minutes, when he then also hired the incomparable John Bash. Those first few weeks of Judge Kavanaugh’s new role on the federal bench, before he brought on board our final two co-clerks or even a receptionist, John and I got to know the Judge in a relatively informal setting as the new chambers got off the ground.

From the start, Judge Kavanaugh’s easygoing, down-to-earth nature quickly came through. There were the first several days before receiving our clerk security badges when the Judge gamely walked down the long courthouse hallway to greet us at the security desk and let us in each morning. Then there was the week of torrential rain when I forget my umbrella (for about the fourth time), the Judge happened upon me as he left the courthouse garage, and he gave me a ride—sopping wet and drenched—to the Metro. There were many chambers lunches at the local dive restaurant. And the Judge encouraged us to invite our parents down to meet him and to tour chambers to see where we were working. Then, as now, for the Judge, family was top priority.

Recently my dad passed away. One of the first people I contacted with the news was the Judge. He and I exchanged memories of my dad’s visit that first summer. My dad was incredibly proud of my clerkship and had been thrilled to meet Judge Kavanaugh. It was a particular honor for me to be hired by Judge Kavanaugh. The Judge has top-of-the-line credentials—he graduated from Yale University and Yale Law School where he was Notes Editor of the Yale Law Journal; he’s also been a longtime instructor at Harvard Law School in courses on the Supreme Court and the Separation of Powers. But by reaching out to me as his first clerk hire, Judge Kavanaugh reached beyond the elite circles most typical of top clerks and showed appreciation for a different kind of candidate. Growing up in a family of relatively modest means in a relatively rural community, I was the product primarily of local public schools, a scholarship student at the public state university, and a graduate of GW Law School primarily funded through another scholarship. The Judge valued hard work, achievement, a commitment to getting the job done right, and the presence of diverse backgrounds as important characteristics for his chambers.

In general, throughout his service, Judge Kavanaugh has been guided by principle and conviction even when it means his approach will differ from the status quo. On a number of occasions Judge Kavanaugh has dissented from panel opinions that are joined even by his conservative colleagues, to take positions that are more in line with the statutory or constitutional text. And Judge Kavanaugh’s dissenting opinions at the D.C. Circuit repeatedly have turned into majority opinions at the Court, revealing not only a jurist who has the toughness to take positions divergent from those of his peers but a jurist who has the power to persuade, effecting longterm change. See, e.g., here, here, and here. With one of the sharpest legal minds in the country, Judge Kavanaugh digs into every issue, taking nothing for granted. Even during this era of generous judicial deference to administrative agencies, Judge Kavanaugh has written 40 opinions finding agency action to be unlawful and joined majority opinions reversing agency action in at least 35 additional cases.

I think Judge Kavanaugh’s toughness to stand with his own convictions derives from a deeply rooted interpretive philosophy built on interpreting law in accordance with the statutory text and the meaning of the text of the Constitution. Judge Kavanaugh has delivered numerous speeches expositing these principles and has fleshed out his interpretive philosophy in a number of publications, including the Harvard Law Review and the Notre Dame Law Review. (He’s also published work in the Yale Law Journal, the Georgetown Law Journal, the Wall Street Journal, and the Washington Post, among other publications.) Here is just a smattering of Judge Kavanaugh’s long record of statements on his judicial and interpretive philosophy.

One of the clearest windows into what drives Judge Kavanaugh as a jurist came during his speech at the Antonin Scalia Law School some time before I joined the faculty. He spoke of Justice Scalia as a role model, praising his courage to stand up to pressure from all sides and interpret the law as it is written:

What did Justice Scalia stand for as a judge?  It’s not complicated, but it is profound and worth repeating often.  The judge’s job is to interpret the law, not to make the law or make policy.  So read the words of the statute as written.  Read the text of the Constitution as written, mindful of history and tradition.  Don’t make up new constitutional rights that are not in the text of the Constitution.  Don’t shy away from enforcing constitutional rights that are in the text of the Constitution.  Changing the Constitution is for the amendment process.  Changing policy within constitutional bounds is for the legislatures.  Remember that the structure of the Constitution – the separation of powers and federalism – are not mere matters of etiquette or architecture, but are at least as essential to protecting individual liberty as the individual rights guaranteed in that text.  And remember that courts have a critical role, when a party has standing, in enforcing those separation of powers and federalism limits.  Simple but profound.

In a time when folks on all sides seem to debate the meaning of judicial restraint, wondering how to read the tea leaves on prospective Supreme Court nominees, Judge Kavanaugh has explained his understanding of the proper role of the judge: It is not to be deferential or practice “restraint” for its own sake. Rather, the role of the judge in cases and controversies is to find against government action where it veers from the statutory and constitutional text but then defer to the other branches where the Constitution leaves decisions up to them.

Was Justice Scalia a deferential judge who was reluctant to overturn the decisions of the legislature, the President, the agencies, the states?  Or did he believe in a more aggressive role for the Judiciary in second-guessing those decisions?  The answer of course is both. In constitutional disputes, Justice Scalia recognized that the courts have an essential role in aggressively protecting the individual rights actually spelled out in the Constitution. . . .

But on the flip side, courts have no legitimate role, Justice Scalia would say, in creating new rights not spelled out in the Constitution.  On those issues, he believed in complete deference to the political branches and the states.  Deference not for the sake of deference.  But deference because the Constitution gave the Court no legitimate role in the case. . . .

Put simply, he was deferential when the Constitution and statutes called for deference.  He was not deferential when they did not.  Justice Scalia was an apostle of restraint and an apostle of engagement.  He believed in the passive virtues, but he also believed in the active virtues.  He understood that the role of the court was not to defer in all cases, nor to vote for the individual right in all cases.  Whether to do so or not depended on the text and history of the constitutional provision in question.

Judge Kavanaugh expounded further on statutory interpretation and the proper role of the statutory text in his Harvard Law Review book review of Second Circuit Judge Robert Katzmann’s work Judging Statutes. Judge Kavanaugh gave a clarion call for judges to form consensus around a narrowing of the concept of statutory ambiguity. Judge Kavanaugh pointed out that many of the interpretive doctrines through which judges often smuggle policy preferences into legal texts are doctrines of ambiguity where interpreters conclude the text does not answer the relevant interpretive question, leaving them free to apply the deference doctrine or values-based canon of their choice. He observed:

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. . . .

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, agreedupon 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.

He continued on to emphasize that “[t]he American rule of law . . . depends on neutral, impartial judges who say what the law is, not what the law should be”:

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.

Judge Kavanaugh was published again on interpretive theory in the Notre Dame Law Review in 2014. This time on constitutional interpretive theory. He “explain[ed] how the text of the Constitution creates a structure—a separation of powers—that protects liberty.” He emphasized that “one fact matters above all in constitutional interpretation and in understanding the grand sweep of constitutional jurisprudence—and that one factor is the precise wording of the constitutional text.” He then covered in depth the Founders’ development of the constitutional separation of powers, the role of the separate branches without our system of government, and the connection between this constitutional structure and the safeguarding of individual rights.

Among many other speeches and writings, Judge Kavanaugh also delivered the Joseph Story Distinguished Lecture at the Heritage Foundation in October 2017. During the speech he called on individuals to, “[i]n the next few days, block out 30 minutes of time and read the text of the Constitution word for word.” He described the Constitution as a document of “majestic specificity”—one of the Judge’s insightful turns of phrase. And he then described how fidelity to the Constitution’s core structure impacts so many of the cases that have come before him and his colleagues on the D.C. Circuit.

If you were in my judicial chambers, you would hear me often saying to my clerks: “Every case is a separation of powers case.” And I believe that. “Who decides?” is the basic separation of powers question at the core of so many legal disputes.

And the bread and butter of our docket on the DC Circuit is interpretation of statutes, usually when deciding whether an agency exceeded its statutory authority or statutory limits. That question of policing the balance between the Legislative and Executive Branches—our administrative law docket—constitutes one of the most critical separation of powers issues in American law. And the most important factor is the precise wording of the statutory text. . . .

In the end, Judge Kavanaugh has indicated that for him it comes down to consistency with statutory text and, ultimately, the Constitution. The beauty of a judge with 12 years on the appeals court that stands at the front line of review of major administrative agency action and complex questions on governmental structure is that it is clear exactly where he stands. Not just on his judicial philosophy but also on his ability to persuade others to more closely follow the constitutional text. His consistent record of faithfulness to law, placing constitutional principle over policy, drives Judge Kavanaugh’s position as thought leader and faithful judge.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Jennifer Mascott

Jennifer Mascott is an Assistant Professor of Law at George Mason's Antonin Scalia Law School where she teaches and writes in the areas of administrative law, constitutional law, and the separation of powers. She is a public member of the Administrative Conference of the United States. Previously she served as a law clerk to Justice Clarence Thomas and to D.C. Circuit Judge Brett Kavanaugh. Follow her on Twitter @jennmascott. Her scholarship is here: http://ssrn.com/author=2653151.

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