Alex G. Philipson, The Daily Record Newswire
The unexpected death of Justice Antonin Scalia has raised compelling questions about the future of the U.S. Supreme Court and the country. How will the court resolve pending cases that Scalia heard but can't help decide? When will he be replaced, and through what political machinations? Will Justice Clarence Thomas now engage in oral argument more than once a decade?
Intriguing as these questions may be, they are ephemeral. Answers will be revealed in due time, and we will move on. What will endure is the extraordinary work (love it or hate it) that Scalia left behind. His opinions and speeches will be studied for years to come, for their legal positions and linguistic flourishes.
But perhaps his single most significant contribution was his treatise on statutory interpretation, written with Bryan A. Garner, "Reading Law: The Interpretation of Legal Texts." The book presents his most thoroughgoing explanation of textualism: the idea that judges should begin and end with the text of a statute, and eschew legislative history. (I reviewed the book in these pages, in September 2012.)
Such a powerful defender of textualism deserves an equally formidable respondent. For years, Justice Stephen Breyer filled that role, both in live debates and in his book, "Active Liberty: Interpreting Our Democratic Constitution."
An equally capable adversary is Robert A. Katzmann, who, in "Judging Statutes," has offered his own cogent reply to Scalia's interpretive philosophy. Chief judge of the 2nd U.S. Circuit Court of Appeals, Katzmann brings an additional credential to the subject: a Ph.D. in political science. His bona fides make him the perfect counterbalance to Scalia.
Against Scalia's textualism Katzmann raises purposivism, the practice of seeking a statute's purpose by using trustworthy materials that legislators themselves use to understand the law. Where Scalia trains a magnifying glass on the words of a statute, relying on semantic and other canons of construction, Katzmann focuses a wide-angle lens on the legislative process, highlighting committee reports and other materials that legislators and their staffs use when drafting and reconciling bills.
Katzmann acknowledges that most judges are neither pure textualists nor pure purpositivists. It's a matter of emphasis and which tools judges use to find meaning. The array of tools includes "text, statutory structure, history, word usage in other relevant statutes, common law usages, agency interpretations, dictionary definitions, technical and scientific usages, lay usages, canons, common practices, and purpose." Of those, the textualist is more reluctant to employ the extra-linguistic tools than is the purpositivist.
What brings out the textualist or purpositivist in a judge is statutory ambiguity. The blame for this ambiguity goes to several factors, including the inherent imprecision of language; the use of general terms in statutes; the nature of coalition politics; the difficulty of foreseeing interpretive problems; and the growing use of omnibus bills.
The words of a statute alone are not much help in resolving ambiguity, Katzmann says, because even with the aid of dictionaries (which drafters often don't use anyway), it is the word's placement in a sentence that typically causes the problem.
Therefore, judges ought to consider what both legislators and executive agencies - the primary interpreters of federal statutes - view as authoritative on a statute's meaning. These creators and consumers of legislation regularly look to reliable legislative history to make sense of statutes.
The third branch of government, Katzmann argues, should be no different. Judges would do well to put themselves in the shoes of legislators and use "the interpretive materials the legislative branch thinks important to understanding its work."
So what do legislators rely on? Katzmann identifies a hierarchy of legislative communications in Congress. "Conference committee reports and committee reports ... sit at the top of the authority, followed by statements of the bill's managers in the Congressional Record, with stray statements of legislators on the floor - who had heretofore not been involved in consideration of the bill - at the bottom."
It turns out that, when legislators review and vote on a bill, they focus more on legislative history than on the bill's text. Accordingly, when judges dismiss legislative history, they increase the risk of interpreting a statute in a way the legislators did not intend.
The difference between Katzmann's and Scalia's views can be seen in a case involving a fee-shifting provision. The Individuals with Disabilities Education Act, or IDEA, allows a prevailing party to recover "reasonable attorneys' fees as part of the costs" incurred in litigation.
In Murphy v. Arlington Central School District Board of Education, the issue was whether parents who prevailed in a dispute with their school systems over the educational placements of their disabled children could recover costs the parents incurred in hiring expert witnesses.
The 2nd Circuit said yes, relying in part on a conference committee report on IDEA that said the conferees intended expert witness fees to be recoverable.
But a divided Supreme Court said no, concluding that, the conference report notwithstanding, the text of the statute said nothing about expert witness fees, and thus the statute unambiguously showed the fees were not recoverable.
Disagreeing with the Supreme Court's majority, Katzmann suggests that to disregard authoritative legislative materials is to ignore "what legislators expect interpreters to consider in seeking to fully understand legislative meaning."
Thus, paying attention to legislative history does more than increase the chances of interpreting a statute the way it was intended; it also promotes healthy relations between the legislative and judicial branches.
Each branch could benefit from a deeper appreciation of how the other works, Katzmann says. As of 2014, only two members of the federal judiciary previously served in Congress, and only two members of Congress previously sat as judges. To address gaps in understanding, Katzmann proposes, among other things, that legislators sponsor seminars for judges and law clerks on the legislative process, and that judges develop programs for legislators and their staffs about how the judiciary functions.
"Judging Statutes" is not a reference work, as is "Reading Law," with its explanations and illustrations of canons of interpretation. Instead, "Judging Statutes" is an argument - and a darn persuasive one - that judges will interpret statutes more faithfully if they appreciate what legislators find useful in understanding their own work. It is only when we put Katzmann's argument alongside Scalia's treatise that we get the full picture of how to understand a statute.
Published: Fri, Apr 01, 2016
