Good afternoon. Welcome to the Heritage Foundations Center and the tenth annual distinguished lecturer. The namesake was a remarkable patriot who carried out the founders vision of a Constitutional Republic before joining the Supreme Court he had a career of his own a congressman from a state legislator from this beaker of the house of representatives and professor at the Harvard Law School and interestingly enough also one of the most successful authors of the first half of the 19th century when he was 65 in that year his royalties keep him twice as much money as his salary at the justice of the Supreme Court. [laughter] when appointed the youngest justice to serve in one of the unions members appointed by president madison and took office the following year february of 1812. He made a significant mark of american law in his 33 years on the bench but his greatest contribution is his renowned commentary to set forth that philosophy of judicial restraint and was in the emirate by that philosophical approach from chief Justice Marshall so this lecture we celebrate his legacy to the United States. The previous lectures were delivered by clarence thomas, Justice Kennedy kennedy, professor harrison at the Virginia Law School judge brown. As our guest this evening are joining a distinguished group of judges and professors we have the honorable Brett Cavanaugh from United States court of appeals and a pointed end took office 2006. Before his appointment judge cavanaugh serve for more than five years in the white house in began as the associate counsel and was assistant to the president up until the time of his appointment. Throughout his career he has been a partner in private practice and an attorney in the office of the solicitor general with the number of distinguished judges that he clerked for and a graduate of yale college and also Yale Law School please join me to welcome our distinguished lecturer of 2017 brought cavanaugh. [applause]. Thanks general for that kind introduction i am honored to be here to deliver the lecture as general meade said having a profound influence as the Supreme Court justice and as a scholar i am honored to deliver a lecture in his name and particularly honored to be here with speakers Justice Kennedy and thomas and my former colleague i have not been a regular attendee at the lecture the last few years because every year seems to follow the same night as a basketball tryouts i coach in d. C. They sure i finally pulled rank and then moved it back one night so tonight i am with you. [laughter] last night with limited success trying to get 47 fit in sixth grade girls to listen to me. [laughter] i will try not to use my coaching voice with you. Coaching my daughters and the Basketball Team has been an important part of life the last six years sometimes im scrambling out of the courthouse to get to practice and i dont always transition that well and the last juror was frustrated i finally blew the whistle and yelled that the girls you cannot dribble through the zone press you have to pass the ball. There was silence and there is never silence one girl who i believe has a future as a standup comic said he is using his judge boyce. [laughter] voice and they all started to laugh at me. I love all those girls in with them in mind are also try not to use my judge voiced. I am grateful to the judge for my confirmation the wonderful letter he wrote for me in 2006 and others who helped me through the process you dont forget your confirmation process and mine was interesting. Because i was serving in the white house when i was nominated. I worked there 5. Five years before becoming a judge. So 12 years later it made me a far better judge of that legislative process with the National Security making. Of how the government operates at the highest level. By white house experience made me more knowledgeable and more independent because that gives the fortitude to say no. On the dc circuit indeed one senator asked my hearing noted i worked at the white house more than five years and said in his opening remarks this isnt justt salt in the wound, this is the whole shaker. [laughter] and this is true after the hearing about the senator, my mom said to me i think he really respects you as only a mom can. People often ask me whether the job is lonely or isolating and the short answer is that it can be if you let it. The date the presiden day the py commission to be a judge may 30th, 2006 dot that you remember those things, i promptly went to the Supreme Court and Justice Kennedy for whom i clerked with my family and Justice Kennedy and chief Justice Roberts present. Justice kennedy told me i could get to my chambers that afternoon and there would be a phone and computer and a task and no one would ever call me again. [laughter] so he advised me to get out and teach and speak and interact at the bar and students and something that he had regularly done and had continued to do for as many years on the Supreme Court. Anyway, i listened to the classes every year for the last decade i tried to get out too many events and visit schools and tonight im following his advice with the honor of delivering the story lecture when Justice Kennedy says something, i listen. Be and many other americans. I want to thank him not just for hosting me in the process back in 2006, but more importantly for the central role he played in leading the revival of the ritualism and american law. I cannot emphasize enough how significant he has been in changing the direction of american law. I think often they helped bring about a revolution in legal theory and doctrine. When we mention goe we mentioneo giants we also must celebrate general meese who was responsible for the important decisions in his role at the white house and attorney general and as attorney general more than any other attorney general he took an interest in constitutional theory and doctrine. He delivered a famous speech july 9 to the american bar association. Its a great speech and if i can give you an initial homework assignment tonight, it is this, go read the july 1989 speech but let me give you some highlights for now. The first greeted the members and said i know that it will be very productive. When i read that last week, productive meetings of the house of delegates, i wondered if that was the last line, but he proceeded to talk about how unpredictable the Supreme Court of the 1980s could be when rendering its judgments. He remembered what someone said when the case came down. The bad news is that the one. The good news is that it didnt win under the 14th amendment. He then said during the recent turn in 84, 85 continued to run in the variable constitutional force. He discussed three areas of the jurisprudence, federalism, criminal procedure and religion discussing federalism, he said it helps us better secure the goal on government. They said to argue with a demanding strict neutrality between religion and would have struck the founding generation as bizarre. The purpose was to prohibit tyranny and not to undermine the religion generally. Well said. In some views the general state of far too many were on the policy choices then articulate principles. He then noted in a critical passage that until very emerge as a coherent stance, the world will continue in this ad hoc fashions. He argued for the jurisprudence of her pajamas and a judge policies in light of principles and raghavan to remold the principles in light of policies. The speech struck a nerve in the american legal establishment and represented a call to attention and action for all those concerned about the rule of law and the rule of chords. He urged more attention as he put it to the words of the constitution for the framers of the constitution chose their words carefully, he said. It is sometimes said the constitution is a document of generalities. As i see it, the constitution is largely a document of majestic specificity which continue to bind us as judges, legislators and executive officials. So, if i could suggest another homework assignment today, it would be this. To block out 30 minutes of time and read the text of the constitution word for word. I guarantee that youll come away froyou will comeaway from n for the constitution specificity. The text of the constitution binds all three branches and again, thinking back to my confirmation process, i met with senator robert byrd at the process when i was trying to get confirmed. He said i would never forget it and at the start of the meeting he said he would never forget this meeting and it turns out he was right. He asked about my family and at that point in 2006 i said to 20o one year old daughter and he said i have two daughters, they are succeeding to 64. [laughter] then he pulled out his constitution, it was right there and i was prepared i had the same one is tattered now but i still have it. He read an article one language about the power of the purse and why did he do that . Because the text of the constitution matters and he cared about the public of the pe purse. [laughter] supernova 1985 speech helped advance the philosophy of the statutory interpretation. It is not confiscated, but it is profound and worth repeating often. The judges job is to interpret the law, not to make policy, so read the words of the statute as written and th in the text of te constitution as written dont make up the rights that are not in the constitution or shy away from the rights that are in the text of the constitution. Changing is for the amendment process in changing policy at the legislatures. Structure protects a liberty and courts have a role in the party is standing in enforcing the separation of powers and federalism when it simple but profound along with chief Justice Rehnquist and Justice Scalia and judge bork, silverman, ginsburg and many others in the 1970s and 1980s. He wanted the groundwork as the law for the judges as umpires and not policymakers. For the notion as he put it in 1985 the judges shouldnt be running at large in the constitutional force. I told him ou him how come i wok about the separation of powers and i suppose that wasnt a limiting selection of a topic for me because my judicial chambers at any point you would hear me saying to my clerks every case is a separation of powers case, and i believe that. Who decides is the basic separation of the core of so many legal disputes. The bread and butter on the dc circuit is interpretation of statutes. Usually when deciding whether an agency exceeded the Statutory Authority or limits that question of policing the balance between the legislative and executive branches or Administrative Law docket constitutes and the most important factor is the precise wording of the text. Listening to case after case, and i do not advise that for anyone who wants to remain sane. You would hear judge after judge asking the council about the precise wording of the regulation at issue. Statutory interpretation over the last generation. Statutory text matters more than it once did. If it is sufficiently clear, it is usually controlled into the text of the law is the law. By emphasizing this, Justice Scalia helped bring about a massive change on the Supreme Court in american law but more work remains. Certain aspects of interpretation are troubling and as i will explain a primary problem stands out. To begi begin, and overarching l for me is to make judging him in partial progress. Its not what the law is but what it should be. Be. Judges are umpires othe chargese should always strive to be a. In a Perfect World at least as i envision it, the outcome of cases wouldnt vary based on the backgrounds, political affiliations were policy views of the judges. This is the rule of the law and the judges on pioneer and who were not free to roam i and constitutional or Statutory Force as he or species sees fit but its the power system. Article one assigns the branch along with the president and the power to make the law. Article three grants the judicial power to interpret those law into controversies. They are encroaching on the legislatures article one power. The petition reads as a natural question how can we move towards the idea in our judicial system when the judges come from many backgrounds and have a strong ideological predisposition. To be sure on occasion the statutory provision may actually require the judge to consider policy and performed a common malfunction with the rule of evidence 501 is a good example that many of the cases involve interpretation of the statute text. Under the structure of the constitution, congress and the president , not the courts possess the authority to legislate and as a result, clear statutes are to be followed. Statutory text are not just common law principles and the text is as natural as a matter of politics and policy. It may be probusiness or prolabor unapproachable bank or consumer regardless they should follow the text where it leads and at the same time when the text of the statute is ambiguous rather than clear they be reso resold. It invites interpretations raised further questions and if there is textual ambiguity rely on the legislative history. Its the reasonable interpretation of the statute. Heres the problem and it is a major problem. Its only if the statute isnt clear but rather as ambiguous. We know why the statute is clear or ambiguous in how much clarity is sufficient to call the statute is clear and in the case without. There is no way for the judges to control enough ambiguity to cross the line where the courts may resort to the constitutional avoidance doctrine, legislative history, chevron deference. In my experience, and this is my personal experience, judges often go back and forth arguing over this exact point. One judge will say the statute is clear this would be the case and the other judge responds i think the text is ambiguous meaning one and another can be employed beside the case. I apologize because there is no right answer. It turns out there are no separate problems. They decide how much clarity is enough to call the statute clear if it is 6040 enough to call it clear how about ed 20. If we can agree on the threshold afterwards suppose the judges they call it clear only if it is 8020 or more in one direction. And even if we see 8020 is a necessary quality of clarity, how do we apply that to this text . Again, who knows. Determining it is not often possible in any rational way. Its difficult for the judges or anyone else to perform that kind of task in a neutral, impartial and predictable fashion. I tend to be a judge finds clarity morwho findsclarity more of my colleague perhaps more than a couple i probably applied something just a ballpark approach to 6535 in other words if it is 6040 its not ambiguous. I think a few of my colleagues and other judges around the country say 9010 rule only if the interpretation is at least 9010 would they call it clear otherwise the canons kicking. Who is right in that debate . No interpretation of 6040 is the correct one or better one. We could agree fo for a sample t we still have to figure out whether the questions are absent and that is a difficult task. So, the simple troubling truth is no definitive guide exists for determining if it is ambiguous and a considerable understatement the Supreme Court itself admitted that there is, quote, no test for identifying where recognizing the unambiguous language. The professor elaborated persuasively on this point arguing that there are no rules among the judges about just how to decide whether the text is ambiguous. As he puts it for making that determination, no here he helps. It is a judgment about the clarity of english and whether it is reasonable to read it in more than one way. The conceptual problem opens the door to a more practical problem. The judgments can be dangerous and can easily be biased by the strong preferences that the makers of the judgments withhold because the judgments of clarity turn on a little more than the judges in stakes sometimes it is harder to ensure that they are separating the policy views from what they require of them and it isnt a matter of the judges trying hard enough, they can see into the ambiguity and in a subconscious way as a practical matter of course, they dont make the clarity versus the ambiguity behind a veil of ignorance. The interpretation issues are briefed at the same stage of the proceedings of the judge who decides to open the ambiguity door already knows what he or she will find behind it. Unfortunately, moreover, the question plays right into what many consider to be the first of our professional training. As the lawyers were indoctrinated to find ambiguity in the clearest of the pronouncements, it is no accident that the most popular Law School Preparation exam book is titled getting to maybe. The problem of difficult clarity wouldnt be quite as significant if the issue is only at the margins but the outcome of many cases turns on the initial and often incoherent dichotomy between ambiguity and clarity and they are the linchpin of the statutory interpretation. A number of Supreme Court decisions implicated the clarity to consider the cases have turned unconstitutional. These were huge significant cases that turned to a significant extent on the question whether the relevant statute was clear or ambiguous. It is a difficult valuation of clarity and ambiguity. As the justice explained 25 years ago how clear is clear if it isnt abandoned the future battles over acceptance for the interpretations of the law will be polls and in fact theyve exactly this terrain was hugely significant cases each to a significant extent on the initial question of whether the relevant statute is clear or ambiguous all these cases came down to a personal question one subject to a certain sort no wonder people suspect the judges personal views are infecting these kind of cases. They are examples of the problems and i want to be clear im not suggesting the judges themselves are acting in an improper political manner but they apply it as possible but too much of the current statutory interpretation regime revolves around personally instinctive assessments of clarity versus ambiguity. This kind of decisionmaking threatens to undermine the stability of the law and the neutrality both actual and perceived that the judiciary and after more than 11 years on the circuit, i have a definite but the clarity versus ambiguity of determination is the statute is too often a barrier to the ideal to be neutral, impartial and predictable among the judges in different parts in the background as an ideological predilections. My point shouldnt be misunderstood statutes always have ambiguities that is the nature of the language including the congress language. We cannot eliminate or avoid them up or push them away but even though it is unavoidable as a practical matter, perhaps he can avoid touching serious interpretive consequences to binary ambiguity determinations that are so hard to make in a neutral and impartial way. Instead of injecting the ambiguity problem into the heart of statutory interpretation, we can consider whether to sideline the threshold as much as possible. What is the solution backs judges should strive to find the best reading of the statute. They shouldnt be diverted by an initial inquiry whether it can be ambiguous. We can try to make sure the judges do not or at least only rarely have to ask whether the statute is clear or ambiguous in interpreting it. It can proceed in a twostep process. First to determine the best reading of the text of the statute by interpreting the words of the statute, taking account of the context and a playing any other appropriate semantic construction which by the way is a fancy way of referring to the general rules by which we understand the general language. Second, once the judges arrived at the best reading of the text they can apply openly and honestly any such is the absurdity doctrine or pla or ply mistake rules such as extraterritoriality and of the mens rea requirement, presumption against retroactivity that might justify the departure from the best reading of the text. Under this twostep approach, few if any statutory interpretation cases would turn on the initial clarity versus the ambiguity in the way that they do now. Now, to be sure determining the best reading of the statute is not always easy but we have tools to perform that task and communicated to the partiecommus and the public in our opinions why later a whole separate inquiry if it doesnt help uncover the best reading and that is inherently difficult to resolve the neutral unpredictable way. Let me take you into a few of these to show you what im talking about to start with the avoidance. The statutes are suppressed to avoid a serious constitutional question or actual unconstitutionality that would arise at the ambiguity in one direction rather than another. For the canon to be triggered, there must be ambiguity in the statute. The initial problem or one initial problem is the avoidance doctrine apart from the ambiguity so it looks like a failure to confront the constitutional questio questiond by the statute as written and another problem apart from this sometimes it is invoked when there are questions of constitutionality rather than actual unconstitutionality. It gives judges the discretion to push the statute one direction, so as to avoid even coming up with a number on the constitutional line. But put aside those constitutional avoidance doctrines which are serious and waiting. In addition to those reasons, i would consider jettisoning the constitutional avoidance canon for a different reason. The trigger for the canon, clear or ambiguous, is so uncertain. So in short they agreed the individual mandate could not be sustained as constitutional under the commerce necessary and proper clause. Think about that unless it is too painful for you to do so. [laughter] what they disagreed them there only disagreed how to apply a the canon in particular whether the individual mandate provision was sufficiently ambiguous the court should resort to woo the avoidance can then they said it wasnt ambiguous but the chief said that it was. For all that has been written on the individual mandate wasnt on the proper interpretation of the constitution and not on the statute it was entirely how much room judges have to find ambiguity when invoking this can and. In my view this is a very odd state of affairs. A case of extraordinary magnitude boils down to of a key provision is clearer or ambiguous even though we have no idea how much is to begin with or ascertain what level exist in a particular statute. My point is not to reopen the debate who have the better argument of the statutory provision in question i imagine people in this room have views about that. But my point is such a question should not be part of the inquiry because despite the best effort of a conscientious judges it is not answerable in the neutral or predictable way. That is what the canon of constitutional avoidance requires why those five justices were compelled to confront and analyze it to. If that avoidance can in was jettisoned what happened . Instead they could determine the best reading based on the words in the context in the agreed upon interpretation. If it was unconstitutional then the judges would say so to determine the appropriate remedy by the proper several ability principles. So now return to the next one. To construe ambiguous statutes of legislative history. You see this all the time. Many have criticized this on formal and functional grounds for those are not enacted by congress as a functional matter to reflect the effort by a subgroup to affect how the statute will be interpreted and implemented in the way congress for the president may have wanted so to conflict those different statements it could be taking out your friends youre crowd but with this piece of history i ever problem with our legislative history is used as a trigger in the first place that the decision is in determinant to greatly exacerbate the problem with the piece of legislative history. If you as a judge just need to pick out your friends with the result you think is most reasonable is the finding of ambiguity, and no set way to determine kerry vs ambiguity than some judges will be more likely to find ambiguity in certain cases. That is obvious with humans psychology and common sense. Judges would decide on the best reading of the statute in that would be largely limited to help to answer the question if it produced the absurdity. Most importantly in that world they would not make interpretations depend so heavily on the difficult assessment if it is clear or ambiguous. Constitutional avoidance that can never interpretation and used all the time on that initial determination. So now to the third and last one i will discuss is chevron deference. Under chevron of the statutory term is deemed in big u. S. Coal courts uphold the authoritative reedy and even if not the best reading so long as the agencys reading is reasonable. This statutory interpretation is why a encounter the most of the d. C. Circuit progress a constitutional avoidance there are other critiques people make of chevron. To begin to have as lydias as many or as little so chevron itself it operates as a shift of power from congress to the executive branch but to put those aside those critiques the fundamental problem is that different judges have wildly different conceptions of a statute is clear or ambiguous but the key move is stop if it is clear that number to is not determinant because it depends on the threshold of clarity verses ambiguity as Justice Scalia pointed out that determination that chink in the armor that is stopping it from being a clear died from future decisions. I see this problem all the time. All the time in my many agency cases it has major practical consequences in the major consequences different judges reaching different results even though they may agree what theyre doing is contrary to the best reading i have been involved in many cases for that. Now thinking about those implications consider a high profile case the rest of the interpretation of the statue in the of the judges agree those agencies reading is not the best reading but two judges believe it is ambiguous so none the less they apple that interpretation even though it is not the best interpretation of their view. The other judge says it is sufficiently clear so they will strike down the agencys interpretation so that simple determination of clarity verses ambiguity could affect billions of dollars. The individual rights of millions of citizens clean air rules security regulations, labor laws but there is no particular the principles guide to make that clarity verses ambiguity decision and no good way for two judges on which to debate or decide your talk about that question. That state of affairs is unsettling and my goal is to help make statutory interpretation and impartial process were life cases are treated alike regardless of the issue or the identity of the parties of the case. That has to be the goal but that is hard to achieve if that threshold trigger is ambiguity. So courts should still differ to as broad and open ended terms and in those cases the court could say the agency could choose among those reasonable options but that is the state farm dr. In you know, what i mean the that is not the chevron doctrine budding cases where the agency is interpret been a sponsorship specific phrase agency if that is the best reading of the text. Judges are trained to do that and it can be done in a neutral and impartial way and of course, there will be disagreements of the meaning but not sidelined by the threshold for go but simply a the problem of Certain Applications that the doctrine is so in determinant and the federal to the impartial rule of law because of that clarity verses ambiguity decision as with constitutional avoidance we should consider eliminating that inquiry was part of the trigger. A number of critical canons that have major real world affects depend on an initial evaluation of the text is clear or in the u. S. Because it is so difficult to make those determinations and evenhanded way courts should reduce those that have the initial finding of ambiguity and instead seek the best reading of the statute by interpreting the worst taking account of the context of a whole statute to apply those agreed upon in a semantic cannons and they can depart from the baseline from any relative substantive cumins kinins or that retroactivity. So to be clear i fully appreciate those disputed calls the best reading of the text is not always an easy task i am not a modern day yogi berra who said no more close calls just moved to first base. [laughter] but the Current Situation as they see it is more akin to where umpires can largely define their own strike zone so my solution is to find the strike zone and advance more precisely so each umpire is in the same guidelines. If we do that we worry less of the empire when the next pitch is thrown. Some may say it is too hard they are inherently complex or it is all politics anyway but i have heard all the excuses i have been doing this 11 years. Im not buying it. In my view it is a mistake to think that this current interpretation is a natural and an alterable order of things. Put simply we can do better with statutory interpretation for the sake of the impartial rule of law we must do better. We have made enormous strides over the last 30 years thanks to Justice Scalia. As a like to say to the girls Basketball Team is now up to us. That much is clear. [applause] i am the director of the center here and before i call him back up to the stage for a presentation sticking with your theme i want to touch on one aspect you did not address the to have that objective way to those delegations of power. Water under the bridge. The way that it works right now there is a doctrine related to the chevron doctrine so i mentioned the chevron canons if the agency is given authority that is ambiguous but for the last 20 years and has been very important exception that they dont apply chevron but presume a non delegation of cases involving major questions there was the tobacco case in the late nineties invoked by the Justice Scalia and this is a critical doctrine in my view in the current Administrative Law world. I have written about it and they think it is quite important. If this did say major issue or a major question a call at the major rules doctrine doctrine, then you dont defer to the agencys interpretation in fact, you presume congress did not delegate the authority to insure issued a major regulation Justice Beyer first articulated Something Like this but then in the late nineties some cases even before that even Justice Rehnquist and i think it is an important doctrine for those broad delegations if you are concerned about agencies taking vague delegations to do massive agency rules then this is critical. Know i will be . To things on this bahau major is major . Money, people, what . That is an important debate and some rules that are made and that is one issue but that is a piece of the nine delegations story and is not under president s but that is the broad delegations that puts the break on what some agencies have done to those massive rules. Is a popular perception that they will do what they want to do and when they have that overreach your pad that privilege so what role should the other branches play in terms of their own interpretations of the constitution . Everyone is under a duty to consider the constitutionality of what theyre doing for the of legislation or the legality under the statute in question but i will tell you about chevron building on my white house experience what does it do in the executive branch . If you know the courts will defer to the reasonable interpretation then then maybe we can commence the courts and do that with a huge policy objective siliceous colet and ambiguous and hope for the best that is the real world phenomenon then migrates to the executive branch because then those officials go to the edge of the line. So chevron has an impact in the executive branch as well. But the courts with more braver says medicine that talks about the structure to have the final word of the congress or the executive branch does overstepped away to violate individual rights and will bring the general back up on the stage for a presentation. The judge, i thank you have filled this evening that you show great scholarship in the sense of humor and a commitment to the constitution so thank you is a pleasure to present to you our warda which is a pitcher of us justice to Brett Cavanaugh and the heritage foundation. [applause] for your library began working now to copies of the of commentary and the much shorter version and with all modesty a foreword by me. [laughter] [applause] 84 being with us and there will be a reception in the courtyard. [inaudible conversations] [inaudible conversations] [inaudible conversations]. The target was Charles Murray and i was behind him that look like he would fall to the ground. He was 74 years old. So i grabbed him by the arm. Just to make sure he did not fall but there was so large grouper i thought he was going to be separated from them but thats when it turned on me. Somebody by a slam to me from the other direction. [inaudible