Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions
Keynote Address: Two Challenges for the Judge as Umpire: Statutor y Ambiguity and Constitutional Exceptions
Brett M. Kavanaugh United States Circuit Judge 0
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F E D E R A L C O U R T S , P R A C T I C E & P R O C E D U R E
S Y M P O S I U M : J U S T I C E S C A L I A A N D
T H E F E D E R A L C O U R T S
K E Y N O T E A D D R E S S : T W O C H A L L E N G E S F O R T H E
J U D G E A S U M P I R E : S T A T U T O R Y A M B I G U I T Y
A N D C O N S T I T U T I O N A L E X C E P T I O N S
Brett M. Kavanaugh*
I am honored to be back at Notre Dame Law School. This is one of the
very best law schools in the United States. I love coming here. I thank the
Law Review for hosting this symposium in honor of Justice Scalia. I am
grateful to Professor Barrett for the generous introduction and for her
outstanding scholarship and teaching at this law school. She is an inspiration to her
students and an inspiration to me. I thank my many friends on the faculty
for being here. I want to single out my longtime friend and colleague Bill
Kelley. We have worked together on many challenging assignments in the
past. He is a special person and a great teacher, scholar, and lawyer. I am
proud to be his friend.
I am Catholic. This university holds a special place in the hearts and
minds of most American Catholics, and it represents the best of the Catholic
educational tradition. That tradition is one that emphasizes service—caring
for the poor, the neglected, the vulnerable. It lives out the Gospel of
Matthew and teaches that your most important duty is to take care of the least of
your brothers and sisters. At the same time, this university’s tradition is one
of inclusiveness, of welcoming people of all faiths and beliefs. And the
tradition is one of teaching and learning, always probing and studying and
thinking about how to make our country and our world a better place.
© 2017 Brett M. Kavanaugh. Individuals and nonprofit institutions may reproduce
and distribute copies of this Address in any format at or below cost, for educational
purposes, so long as each copy identifies the author, provides a citation to the
Notre Dame Law Review, and includes this provision in the copyright notice.
* United States Circuit Judge, United States Court of Appeals for the District of
Columbia Circuit. This is based on remarks delivered at Notre Dame Law School on
February 3, 2017.
When I received the invitation to be here, I will admit that I glanced at
the schedules for both the women’s and men’s basketball teams and hoped I
might be able to catch a game. Alas, no home games this week. I recall that
my very first trip to Notre Dame was almost exactly thirty years ago to the day
to watch Notre Dame play against then-number-one North Carolina in men’s
basketball. I was here with a bunch of my Georgetown Prep high school
friends who went to Notre Dame. Notre Dame upset North Carolina, and it
was a raucous scene and a wild weekend. Fortunately, there was no social
media back then.
Just a couple of nights ago, Neil Gorsuch was nominated to the Supreme
Court. Neil and I actually went to high school together at Georgetown Prep.
I was two years ahead of him. And then we clerked together the same year
for Justice Kennedy and got to know each other very well. We worked
together in the Bush Administration, and we both became judges in 2006.
We serve together now on the Appellate Rules Committee of the Judicial
Conference, and were coauthors along with Bryan Garner and several other
judges of a book on precedent.1 Don’t try to read that book all at once is my
only piece of advice. So I know Neil Gorsuch well and have known him
seemingly forever. He is a good friend. He is kind, funny, hard working, and
brilliant. He’s a great writer and independent. With his smarts, his
character, and his understanding of life and law, I firmly believe he will be one of
the great Justices in Supreme Court history, like a Jackson or a Scalia.
Watching him the other night, I felt immensely and overwhelmingly proud of him.
And proud of Georgetown Prep, I might add.
Neil was of course nominated to replace Justice Scalia, for whom we are
gathered here. I do not want to overstate my relationship with Justice Scalia.
But I loved the guy. For starters, he was always so funny when I saw him at
dinners or legal events or anywhere. He had a magnificent wit and put
everyone at ease. But beyond that, Justice Scalia was and remains a judicial hero
and role model to many throughout America. He thought carefully about
his principles, he articulated those principles, and he stood up for those
principles. As a judge, he did not buckle to political or academic pressure from
the right or the left. He was fiercely independent.
For many decades, moreover, he tirelessly and at substantial financial
sacrifice devoted himself to public service, teaching, and lecturing. We all
benefited from that. If you asked him to do something, he said yes if there
was any way he could possibly do it. He was anywhere and everywhere, from
the Red Mass, to far-flung legal conferences around the world, to classes at
law schools, to the annual Friendly Sons dinner on St. Patrick’s Day (and you
might be aware, he was not Irish). He wanted to give back. He was a great
example for public servants and teachers.
He loved his wife and family. He was a man of faith. And he really was a
man for others. He inspired me to try to do more and to do better in all
facets of my life, and I hope he inspires all of us to do the same. I miss him
personally and professionally.
What did Justice Scalia stand for as a judge? It’s not complicated, but it is
profound. 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. The Constitution is
a document of majestic specificity defining governmental structure,
individual rights, and the role of a judge. Remember that the structural provisions
of the Constitution—the separation of powers and federalism—are not mere
matters of etiquette or architecture, but are essential to protecting individual
liberty. Justice Scalia’s memorable dissent in Morrison v. Olson is of course
the best example of that.2 Remember that courts have a critical role, when a
party has standing, in enforcing those separation of powers and federalism
limits. For judges, Justice Scalia would say, don’t make up new constitutional
rights that are not in the text of the Constitution. But don’t shy away from
enforcing constitutional rights that are in the text of the Constitution.
Changing the Constitution is necessary at times, but it is to be done by the
people through the amendment process. Changing policy within
constitutional bounds is for the legislatures.
That’s about it. Simple but profound. And it made a lot of converts.
But more work remains. I want to touch on two aspects of Justice
Scalia’s jurisprudence and the Court’s jurisprudence: statutory interpretation
and constitutional interpretation. And I am going to explain how
uncertainty in certain aspects of statutory and constitutional interpretation is
affecting the Court, and the vision of the Court that the American people
Justice Scalia described the rule of law as a law of rules. He believed in
clear rules that would lead to predictable results and constrain judicial
discretion. As John Manning has said, one of the defining features of the Scalia
jurisprudence is to set forth rules and principles that were not balancing tests
that could be used by judges to make it up as they go along.3 In Justice
Scalia’s book A Matter of Interpretation, he explained that federal judges are
not common-law judges and should not be making policy-laden judgments.4
Along the same lines, Chief Justice Roberts has famously articulated the
vision of the judge as umpire, which captures the same basic point in a catchy
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. When we watch a Notre Dame-Michigan game, we do not ask whether
2 See Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting).
3 See John F. Manning, Justice Scalia and the Idea of Judicial Restraint, 115 MICH. L. REV.
4 ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (Amy
Gutmann ed., 1997).
the referees are Irish fans or Wolverines fans. Yet when we watch the
Supreme Court, too many Americans think the decision is pre-baked based
on the party of the President who appointed the Justices or the policy
preferences of the Justices. That bothers me, and I have been thinking about the
causes of that, and whether there are at least some modest cures for that.
Let me talk first about statutes.5 Statutory interpretation has improved
dramatically over the last generation, thanks largely to Justice Scalia. Justice
Scalia brought about a massive and enduring change in statutory
interpretation. Text matters. The text of a law is the law. As Justice Kagan recently
stated, “we’re all textualists now.”6 When the text is clear, the Court says,
follow the text unless the text is absurd or unless the text is overridden by
some clear statement canon of interpretation. That is a neutral principle: It
is not pro-business or pro-labor, pro-manufacturer or pro-environment,
proplaintiff or pro-defendant. And Justice Scalia is largely to thank for that.
But statutory interpretation is still troublingly imprecise and uncertain
in many cases.
Here’s my biggest problem. Several substantive canons of statutory
interpretation, such as constitutional avoidance, legislative history, and
Chevron, depend on an initial determination of whether the text is clear or
ambiguous. But how do courts know when a statute is clear or ambiguous? In
other words, how much clarity is sufficient to call a statute clear and end the
case? Quite simply, there is no good or predictable way for judges to do this.
Judges go back and forth. One judge will say it is clear. Another judge will
say, “No, it’s ambiguous.” Neither judge can convince the other. Why not?
The answer is that there is no right answer.
There are two separate problems here.
First, how much clarity is enough? Sixty-forty? Eighty-twenty? Who
Second, let’s imagine we can agree on eighty-twenty. How do we apply
that? How do we know whether and when a statute is eighty percent clear?
The simple and troubling truth is that there is no definitive guide for
determining whether statutory language is clear or ambiguous. As Professor
Ward Farnsworth has written, judgments about ambiguity are dangerous
“because they are easily biased by strong policy preferences.”7
Does this really matter in the real world of judicial decisionmaking? Yes.
I am here to tell you that it matters in a huge way in many cases of critical
importance to the Nation. And it matters in a way that threatens the vision of
the judge as umpire.
Consider the constitutional avoidance canon, which was at issue in cases
such as Wisconsin Right to Life and perhaps most famously NFIB v. Sebelius.8 In
NFIB, the whole issue of whether the Affordable Care Act’s individual
mandate would survive came down to the constitutional avoidance doctrine. Was
the statute’s reference to a penalty sufficiently ambiguous that it could be
considered a tax and therefore avoid unconstitutionality under the Taxing
Clause? The four dissenters said that the statute was not ambiguous. Chief
Justice Roberts said that the statute was ambiguous. And on that question,
the fate of the individual mandate and the healthcare law was decided.
Or consider legislative history. Now, some judges never or rarely use
legislative history in part because it is akin to picking out your friends at a
party.9 But many judges use legislative history, although they hasten to add
that they use it only when a statute is ambiguous. That, indeed, is what the
Supreme Court typically says as well. But think about the problem this
causes. All it takes to pick out your friends—that is, to interpret the statute in
a way that leads to a better policy outcome—is to find the statute ambiguous.
That creates a huge incentive for judges to find statutes ambiguous. If there
is no coherent way to determine whether a statute is clear or ambiguous, that
is a problem for the goal of neutral statutory interpretation.
Third, consider the Chevron doctrine. We see this doctrine all the time
on my court with cases involving the huge agencies: EPA, the FCC, the SEC,
and the like. Chevron tells us that we must defer to an agency’s reasonable
interpretation of a statute if the statute is ambiguous.10 To begin with, the
Chevron doctrine encourages agency aggressiveness on a large scale. Under
the guise of ambiguity, agencies can stretch the meaning of statutes enacted
by Congress to accommodate their preferred policy outcomes. I saw this
firsthand when I worked in the White House, and I see it now from the other side
as a judge. But think about what this means in real cases in courts. Say you
have a really important agency rule that is being challenged before a
threejudge panel. The question is whether the agency rule is authorized under
the implementing statute. One judge says that the statute is clear and the
agency loses. Two other judges say that the statute is ambiguous, so they
defer to the agency even though they may agree with the first judge on what
is the best reading of the statute. The result is that the agency wins, even
though none of the three judges thought that the agency had the better
reading of the statute.
The legality of a major agency rule may—and in my experience on many
occasions does—turn not on whether the judges think the agency’s
interpretation of the statute is the best interpretation, but rather on whether the
statute is ambiguous. That is true even though there is no real objective
guide for determining whether a statute is ambiguous.
I should note, parenthetically, that there is a separate concern about
Chevron as famously expressed by Judge Gorsuch. He said the doctrine is
flawed ab initio because the Administrative Procedure Act says that courts
should decide questions of law in administrative law cases of this sort.11 But
that’s not my issue for today. My issue today is the ambiguity trigger.
So what’s the solution to the ambiguity trigger for these various canons?
I am not entirely sure, to be candid. I suppose some snarky people might say
that Congress should not write ambiguous statutes. But the limits of
language are such that that is an impossible goal to achieve in all cases, to state
the obvious. We cannot eliminate all ambiguity in statutes.
But we can stop using ambiguity as the trigger for applying these canons
of statutory interpretation. In my view, judges should strive to find the best
reading of the statute, based on the words, context, and appropriate
semantic canons of construction. To be sure, judges may deviate from the best
reading if there are any applicable plain statement rules—such as the
presumption against extraterritoriality or the presumption that statutes do not
eliminate mens rea requirements. Judges may also apply the absurdity
canon. But otherwise, courts should go with the best reading of the statute.
For example, instead of applying the constitutional avoidance canon in
its current form, courts would determine the best reading of the statute. If
that reading is unconstitutional, then the court would say as much and
ordinarily sever that provision of the law from the remainder of the statute.
As to legislative history, it would be used primarily to help identify
absurdities but otherwise would play a relatively limited role. It bears
mention that legislative history already plays a relatively limited role in statutory
interpretation. As Justice Kagan stated two years ago, legislative history is
usually icing on a cake already frosted.12
For Chevron, courts would simply determine the best reading of the
statute. Courts would no longer defer to agency interpretations of statutes. This
would help keep agencies within statutory bounds and help prevent a
runaway executive branch that exploits ambiguities in governing statutes to
pursue its broad policy aims, even in situations where Congress has not enacted
legislation embodying those policies.
All of that said, Chevron makes sense in certain circumstances, usually
when it merges with the State Farm doctrine.13 For example, Congress might
assign an agency to prevent utilities from charging “unreasonable” rates. In
such a case, what counts as “unreasonable” amounts to a policy decision. So
courts should be hesitant to second-guess that decision. In that
circumstance, Congress has assigned the decision to an executive branch agency
that makes the policy decision. So the courts should stay out of it for the
most part. But Chevron has not been limited to those kinds of cases. As of
now, Chevron is the default rule for all statutes and all agencies.
To sum up on statutes, as of now, determinations of ambiguity dominate
statutory interpretation in a way that few people realize. Indeed, even judges
seem unaware at times of how fundamental an issue this is. The problem is
that there is no objective or determinate way to figure out whether
something is ambiguous. This is a major problem for the Scalia vision of
constraining the discretion of judges and for the corresponding Roberts vision of
the judge as umpire. We have a culture of searching for ambiguity instead of
a culture of searching for the best reading of the law. By eliminating that
threshold ambiguity trigger in the ways I have described, we can transform
from a culture of ambiguity to a culture of law.
Let me turn now to the Constitution.
There is often a debate about originalism versus living constitutionalism.
Justice Scalia famously promoted originalism. Originalism is akin to
textualism, but it takes account of the fact that the meaning of a word might have
changed from the time of enactment to today. When that has occurred, the
meaning at the time of enactment controls. But the debate over originalism
matters mostly when we are talking about interpreting a provision of the
Constitution for the first time. That’s not where most big constitutional
controversies are erupting at the Supreme Court these days.
Rather, a big debate at the Supreme Court—and the area most in need
of help in living up to the vision of judge as umpire—is how to analyze and
define implicit exceptions to constitutional rights when the Court applies its
preexisting precedents that have already interpreted various constitutional
Two terminology caveats at the outset.
First, don’t get hung up on the word “exceptions.” Whether you call
them exceptions to a right or the contours of a right is irrelevant to my point.
Second, don’t get sidetracked by what you think about the underlying
right. You may think the Supreme Court erred when it held that the Second
Amendment protects an individual right to gun ownership or when it held
that the Fourteenth Amendment protects an individual right to abortion.
Don’t let that sidetrack you from the analysis to follow.
How do we determine the exceptions to constitutional rights?
One possibility, of course, would be that there are no exceptions to
constitutional rights unless those exceptions are specified in the constitutional
text. That absolutist view was sometimes associated with Justice Hugo Black
and the First Amendment.
But that approach does not really work in the wake of incorporation.
Let me explain that point.
Take the First Amendment’s protection of freedom of speech. As
ratified in 1791, the First Amendment applied only against the federal
government. The First Amendment, and the Bill of Rights more generally, did not
protect liberty against state governments. The Bill of Rights thus preserved
and even enhanced states’ rights to regulate. Therefore, the states could
regulate speech and ban libel. Because the states could regulate speech, the
federal government did not need to do so. As a result, from 1791 to at least
1868, the First Amendment could have been absolute as applied against the
After 1868, of course, the Fourteenth Amendment was in place. That
Amendment incorporated many of the rights in the Bill of Rights against the
state governments as well as against the federal government.14
So one might ask: After incorporation, why not still say that the First
Amendment, for example, is absolute against the state governments as well as
against the federal government?
The short answer is that taking that absolutist approach would be all but
impossible. No exceptions would mean no libel laws and no defamation laws.
Threats and incitements would be protected under the First Amendment.
Traditional state restrictions on speech could be wiped away if the rights were
absolute and incorporated such that they applied against both federal and
state governments. And no one was prepared to do that, and no Justice has
ever advocated such an approach, as far as I know. Indeed, even Justice
Scalia—the foremost textualist and originalist—did not hold that view. No
one—and I mean no one, not even Justice Black—articulates that view of the
So what does that mean? It means that there are exceptions to
constitutional rights. But how do we determine what the exceptions are? And there
it is. That’s the battleground. That’s the difficulty. That’s the threat to the
rule of law as a law of rules. That’s the threat to the judge as umpire.
No one doubts that there is an expansive right to free speech protected
against both federal and state governments. But what regulations of speech
are still permissible?
Eventually, when faced with that question in the 1950s and thereafter,
the Supreme Court came to adopt various tiers of scrutiny: strict scrutiny,
intermediate scrutiny, and rational basis review. These tests were used and
continue to be used to decide whether a law may be upheld even though it
affects or infringes the individual right in question. Depending on which test
is employed, the Court asks whether the regulation serves a compelling
governmental interest or an important governmental interest or a legitimate
governmental interest. And then the Court asks whether the regulation is
necessary or narrowly tailored or substantially related or reasonably tailored
to that interest.
If nothing else, I want to underscore that the compelling interest/
important interest/strict scrutiny/intermediate scrutiny formulations are
rather indeterminate. Those verbal formulations require judges to balance a
14 See McDonald v. City of Chi., 561 U.S. 742, 763 (2010) (“While [total incorporation]
was never adopted, the Court eventually moved in that direction by initiating what has
been called a process of ‘selective incorporation,’ i.e., the Court began to hold that the
Due Process Clause fully incorporates particular rights contained in the first eight
Amendments.” (citations omitted)).
variety of hard-to-measure factors. On one hand, judges must evaluate the
strength of the government’s interest in the regulation. On the other hand,
judges must evaluate how big a burden the regulation places on the relevant
right. But those verbal formulations offer little principled guidance for
making either determination, much less for weighing the two sides against one
another. Those formulations are sometimes empty of real, determinate,
objective meaning. At most, they are a mood-setter, but they don’t tell us in
the end whether to uphold a state ban on semiautomatic rifles or a particular
state regulation of doctors who perform abortions or a law that proscribes or
limits expenditures in support of political candidates.
Yet those formulations are ubiquitous in constitutional law. We see
them in First Amendment cases, Second Amendment cases, Fourteenth
Amendment abortion cases, Fourteenth Amendment affirmative action cases,
and in several other areas. Indeed, some statutes have borrowed this
terminology—most notably, the Religious Freedom Restoration Act.15 These are
some of the most disputed and controversial areas in law, yet we do not have
objective guideposts that can give us neutral ways to decide these cases.
It’s sometimes as if you were asked to umpire a baseball game, and you
asked the Commissioner of Baseball whether the bottom of the strike zone
was at the knees or at the hips, and you were told that it was up to you.
These verbal formulations are challenging because judges have no
objective way of deciding whether an interest is “compelling” or “important”
without making a judgment about the desirability of that interest. Nor do they
have an objective way of deciding whether legislation is sufficiently tailored to
that interest without making a judgment about how well the legislation aligns
with the state’s goals. These verbal formulations therefore do not constrain
or guide judges in meaningful or predictable ways. They put judges in the
position of making judgment calls that inevitably seem rooted in policy, not
What is really going on with these tests, it appears, is old-fashioned
common-law judging. This may be unavoidable, as I will explain. But we should
be under no illusions that this is not what’s happening when those tests are
To be sure, the hallmark of common-law judging is that legal tests,
however difficult to apply in the abstract, acquire meaning as courts apply them
with greater frequency. Precedent develops over time, and precedent allows
judges to develop the meaning of phrases like “compelling interest” or
“narrowly tailored” in particular areas. Nonetheless, across much of
constitutional law, the Supreme Court’s precedents do not necessarily lead to
15 See Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488
(codified as amended at 42 U.S.C. §§ 2000bb–2000bb-4 (2012)); see also 42 U.S.C.
§ 2000bb-1(b) (“Government may substantially burden a person’s exercise of religion only
if it demonstrates that application of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.”).
predictable results. Why? In part because judges do not all look at the same
factors when deciding the scope of constitutional exceptions.
What factors is the Court really looking at when it uses these tests and
decides the scope of constitutional exceptions? What is informing the
Court’s common-law judging in these areas? It seems that there are at least
three factors that the Justices are examining. But not all the Justices are
looking at the same factors in individual cases or across cases.
Some Justices place heavy reliance on history and tradition, sometimes
leavened with contemporary practice, when assessing exceptions to
constitutional rights. If a claimed exception to a constitutional right has an historical
pedigree or is very common—think libel laws or obscenity laws—then the
regulation will be upheld. But otherwise, no exceptions. Justice Scalia relied
very heavily on history and tradition when determining whether a particular
regulation could be upheld even though it affected a constitutional right.
You see that quite clearly in Part III of his Heller opinion,16 and you see it in
many of his First Amendment free speech opinions over the years, such as
Republican Party of Minnesota v. White.17
Some Justices tilt toward liberty at least in some cases, meaning that they
will be very reluctant to recognize an exception to a constitutional right
unless it is absolutely essential. Justice Kennedy often relies on liberty as a
guide in cases of claimed constitutional exceptions. (To be clear, I am
referring here to liberty in the sense of freedom from government regulation.)
Some Justices tilt toward judicial restraint or deference, meaning that
they often will be very reluctant to overturn the legislature’s regulation if it is
reasonable. In determining whether the regulation is reasonable, they will
evaluate whether the benefits outweigh the costs. Justice Breyer is perhaps
the Justice most associated with this approach. He often relies on restraint
and deference as guides in cases of claimed constitutional exceptions.
Let’s look at a few examples. In discussing examples, let me be clear and
state the obvious: I am necessarily speaking generally, and each one of these
areas of the law has lots of nuances. I am simplifying for analysis purposes—
and no doubt oversimplifying.
Take the First Amendment and campaign finance. You have the right to
free speech, and that includes of course the right to advocate for a particular
candidate or policy. But we have exceptions to the First Amendment for
libel, defamation, threats, obscenity, and the like. Should there be an
exception for campaign finance regulation?
The Court generally allows regulation of campaign contributions. But
the Court generally does not allow regulation of campaign expenditures.
The case articulating that divide was of course the 1976 decision in Buckley v.
In recent years, the big expenditures case is Citizens United.19 That case
applied the compelling governmental interest test. And perhaps not
surprisingly, we see Justice Kennedy writing the majority opinion tilting toward
liberty and the dissent emphasizing deference to the reasonable judgment of
Who’s right? Well, that depends on what test you think the Court
should apply to assess constitutional exceptions, and then how you would
apply that test to this particular issue. But I am not surprised there is such
disagreement on this issue, because the test employed—compelling
interest—is inherently a common-law test. And common-law tests almost by
definition call on judges to assess whether they think the law is important enough
to uphold in light of the larger values at stake.
Consider next the Fourteenth Amendment and abortion. The Supreme
Court said in Roe v. Wade that there was a right to abortion in certain
circumstances.21 But that has raised a follow-on issue that has come up again and
again in the years since Roe. What regulations of abortion are permissible?
Informed consent, waiting periods, partial-birth bans, doctor licensing,
parental notice, and the like. What is the answer—and more importantly for
present purposes, what is the nature of the test we should use to figure out
Since 1992, the Court has settled on an undue burden test.22 That test is
very much a common-law kind of test. Does the law burden the woman’s
right? And if so, is that burden “undue”? The word “undue” calls for a
classic assessment of the pros and cons of the regulation in question. And not
surprisingly, that is how Justice Breyer articulated the test in the most recent
abortion case, Whole Woman’s Health.23
Consider also the Fourteenth Amendment and affirmative action. The
Court has recognized a basic equal protection right not to be treated
differently by the government on account of your race. But there is a longstanding
exception for affirmative action, at least in the realm of higher education.
But how do we determine whether a particular affirmative action program
passes muster or not? We see the Court battling over strict scrutiny or
intermediate scrutiny—and then battling over exactly what constitutes a
compelling enough interest for purposes of strict scrutiny. In Bakke and post-Bakke
cases, the Court found that ensuring diversity is a compelling interest but
remedying the effects of past societal racial discrimination is not a
compelling interest.24 In those cases, the Court also battles over whether the
affirmative action program is narrowly tailored to promote the state’s interest in
ensuring diversity. On what basis is the Court making those decisions? Is
there something in the text of the Constitution that tells us one is good
enough and the other is not good enough? Not really. Again, this is
common-law judging to define the contours of the exception to the constitutional
The last area I will mention is the Second Amendment and guns. Heller
says you have an individual right to possess certain guns.25 And for present
purposes, just take that as a given even if you happen to disagree with Heller
on that point. The battleground issue now is what exceptions are there to
Interestingly, Part III of Justice Scalia’s majority opinion in Heller
preidentified a number of exceptions based on history and tradition. He noted
for the Court that dangerous and unusual weapons such as machine guns
(that is, fully automatic as opposed to semiautomatic guns) had been banned
for a long time. He noted that guns had been banned in public buildings.26
Again, Justice Scalia (as I read him) seemed to rely on history and tradition
to define the category of permitted exceptions.
Justice Breyer by contrast wrote a separate opinion to say that exceptions
to the right should be determined on the basis of reasonableness.27 This was
another example of Justice Breyer’s common-law approach with an emphasis
on judicial restraint and deference to the legislature.
The litigation in the lower courts since Heller has centered on which gun
regulations are constitutional and which gun regulations are
unconstitutional.28 Not surprisingly, this has played out as a battle over whether strict
scrutiny or intermediate scrutiny applies. Must the regulations serve a
compelling interest or merely an important interest? As I have stated, I view
much of that debate as a smokescreen that is disguising basic common-law
balancing and deciding what is reasonable versus what is unreasonable, what
is important versus what is not as important.
And in this context in particular, I view Heller as having already told us
that the content of exceptions to the Second Amendment right is not to be
assessed based on strict scrutiny or intermediate scrutiny. Rather, the
exceptions are to be assessed by reference to history and tradition. I wrote an
opinion to that effect, although I am the first to acknowledge that most other
lower-court judges have disagreed.29 The issue has not returned yet to the
Supreme Court. To be determined.
In all of these examples, what I want to emphasize is that the exceptions
here are ultimately a product of common-law-like judging, with different
Justices emphasizing different factors: history and tradition, liberty, and judicial
restraint and deference to the legislature being three critical factors that
compete for primacy of place in different areas of the Supreme Court’s
jurisprudence articulating exceptions to constitutional rights.
So where are we in terms of constitutional decisionmaking on these
major cases? Many controversial decisions in constitutional law are about the
exceptions. We analyze those cases under the rubric of tests such as
compelling or important interests, or strict or intermediate scrutiny, or undue
burden, which are often question begging. My concern is that these vague and
amorphous tests can at times be antithetical to impartial judging and to the
vision of the judge as umpire. We see various factors fight for dominance in
these cases: history, liberty, and restraint/deference being three of the most
prominent. But there are no guideposts for which factors apply in which
cases. No wonder those cases end up being 5-4 and dividing along lines that
seem predictable to the public.
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. But
regardless of what the solution may be, I think we should square up to the problem.
* * *
In sum, Justice Scalia believed in the rule of law as a law of rules. Chief
Justice Roberts similarly wants judges to be umpires, which ordinarily entails
judges applying a settled legal principle to a particular set of facts.
I agree with that vision of the judiciary. But there are two major
impediments in current jurisprudence to achieving that vision of the judge as
umpire. The first is the ambiguity trigger in statutory interpretation. The
second is the amorphous tests employed in cases involving claimed
I do not have all the answers to those problems. But we should identify
and study these issues. Inspired by Justice Scalia’s longstanding efforts to
improve the law, we all must continue to pursue the ideal of a neutral,
impartial judiciary. Thank you.
5 I wrote at length to explain this point about statutory interpretation in my review of Chief Judge Katzmann's book . Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118 ( 2016 ) (reviewing ROBERT A. KATZMANN , JUDGING STATUTES ( 2014 )).
6 The Scalia Lecture: A Dialogue with Justice Elena Kagan on the Reading of Statutes at 8 :28, HARV . L. TODAY (Nov. 17 , 2015 ), http://today.law.harvard. edu/in-scalia-lecture-kagan-discusses-statutory-interpretation.
7 Ward Farnsworth et al., Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. LEGAL ANALYSIS 257 , 290 ( 2010 ).
8 NFIB v . Sebelius , 567 U.S. 519 ( 2012 ) ; Fed. Election Comm'n v . Wis . Right to Life, Inc., 551 U.S. 449 ( 2007 ).
9 See Conroy v. Aniskoff , 507 U.S. 511 , 519 ( 1993 ) (Scalia, J., concurring in the judgment) (“Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends .”).
10 See Chevron U.S .A. Inc. v. Nat. Res. Def. Council , Inc., 467 U.S. 837 ( 1984 ).
11 See Gutierrez-Brizuela v . Lynch , 834 F.3d 1142 , 1149 - 58 ( 10th Cir . 2016 ) (Gorsuch , J., concurring).
12 Yates v. United States , 135 S. Ct . 1074 , 1093 ( 2015 ) (Kagan , J., dissenting).
13 See Motor Vehicle Mfrs . Ass'n of the United States, Inc . v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 ( 1983 ).
19 Citizens United v. Fed. Election Comm'n , 558 U.S. 310 ( 2010 ).
20 Compare id . at 349-62, and id. at 371-72, with id. at 394-96 (Stevens, J., dissenting).
21 See Roe v. Wade , 410 U.S. 113 ( 1973 ).
22 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 ( 1992 ) (plurality opinion).
23 See Whole Woman's Health v . Hellerstedt , 136 S. Ct . 2292 ( 2016 ).
24 See Regents of the Univ. of Cal . v. Bakke, 438 U.S. 265 ( 1978 ) ; see also , e.g., Fisher v. Univ. of Tex . at Austin (Fisher II), 136 S. Ct . 2198 ( 2016 ); Fisher v . Univ. of Tex. at Austin (Fisher I) , 133 S. Ct . 2411 ( 2013 ); Grutter v . Bollinger , 539 U.S. 306 ( 2003 ).
25 See District of Columbia v. Heller , 554 U.S. 570 ( 2008 ).
26 See id . at 626-28.
27 See id . at 689- 91 (Breyer, J., dissenting).
28 See, e.g., Kolbe v . Hogan , 849 F.3d 114 ( 4th Cir . 2017 ) (en banc); Horsley v . Trame , 808 F.3d 1126 ( 7th Cir . 2015 ); United States v . Bryant , 711 F.3d 364 ( 2d Cir . 2013 ); United States v . Marzzarella , 614 F.3d 85 ( 3d Cir . 2010 ).
29 See Heller v. District of Columbia , 670 F.3d 1244 , 1271 (D.C. Cir . 2011 ) (Kavanaugh , J., dissenting).