We interrupt our extended review of Atlas Shrugged to say a few preliminary words about Judge Brett Kavanaugh (BK). Although we were rooting for Amy Barrett, we have nothing bad to say about BK. If confirmed by the Senate, will he vote to dismantle the administrative state, overturn gay marriage, or eviscerate abortion rights? Those possible outcomes will depend on his views of precedent. But however he votes, we expect his decisions to be intellectually honest and well reasoned. By way of example, check out BK’s thoughtful essay “Fixing Statutory Interpretation,” which was published in The Harvard Law Review, Vol. 129 (2016), pp. 2118-2163, available here. Below is an extended excerpt (footnotes omitted):

In recent years, the Supreme Court has often repeated a critical principle: when the text of the statute is clear, the court does not resort to legislative history. Likewise, when the text of the statute is clear, a court should not turn to other principles of statutory interpretation ***.

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 there without triggering the ambiguity-dependent canons.

Unfortunately, there is often no good or predictable way for judges to determine whether statutory text contains “enough” ambiguity to cross the line beyond which courts may resort to the constitutional avoidance canon, legislative history, or Chevron deference. In my experience, judges will often go back and forth arguing over this point. One judge will say that the statute is clear, and that should be the end of it. The other judge will respond that the text is ambiguous, meaning that one or another canon of construction should be employed to decide the case. Neither judge can convince the other. That’s because there is no right answer.

How refreshing (and rare): an intellectually-honest judge. BK for SCOTUS!

Captain Originalist versus Constitution Woman?

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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5 Responses to BK for SCOTUS?

  1. Jon Awbrey says:

    I always have a little trouble with “originalists” who think corporations are persons, money is speech, and the church of their choice trumps the state.

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