Justice Kavanaugh in the Federal Tax Procedure Book (10/6/18)

I thought in view of the elevation of Judge Brett Kavanaugh to Justice of the Supreme Court, I would include some of my many citations to him in the Federal Tax Procedure book.  The following are from the working draft for the 2019 editions (Student and Practitioner) which may be somewhat different from the 2018 editions.

[On Calling Balls and Strikes]

Consider Justice Roberts' famous statement in his confirmation hearings that “Judges are like umpires. Umpires don’t make the rules, they apply them;” his job, he proclaimed, as a judge and prospective Supreme Court Justice was to call “balls and strikes.” Continuing the baseball metaphor, however, a leading jurist, Justice Brett Kavanaugh, says:

[T]he current situation in statutory interpretation, as I see it, is more akin to a situation where umpires can, at least on some pitches, largely define their own strike zones. My solution is to define the strike zone in advance much more precisely so that each umpire is operating within the same guidelines. If we do that, we will need to worry less about who the umpire is when the next pitch is thrown.” fn

fn Brett M. Kavanaugh, Book Review: Fixing Statutory Interpretation, 119 Harv. L. Rev. 2118, 2121 (2016).

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[Kavanaugh on Justice Scalia's impact on statutory interpretation]

Justice Scalia’s impact on statutory interpretation by focus on the text of the statute, to the exclusion of external sources, has been described as effecting a “a massive and enduring change in American law.” Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (the article is a book review of Robert Katzmann, Judging Statutes (Oxford Univ. Press 2014) (which advocates a broader approach to interpretation, including specific use of legislative history); Justice Kavanaugh strongly defends Scalia’s approach to statutory interpretation).

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[Discussing textualism and its constitutional counterpart "orginalism"; this is in a footnote]

Related to textualism in statutory interpretation is originalism in constitutional interpretation. Originalists in constitutional interpretation use the textualist interpretive strategy of looking to the meaning, perhaps public meaning, of the constitutional text at the time the Constitution or amendment was approved. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U.L. Rev. 109, 114 (2010) (“Textualists in statutory interpretation tend to be originalists in constitutional interpretation. “). As Justice Kavanaugh said in this confirmation hearing on 9/5/18, originalism is “constitutional textualism, meaning the original public meaning of the constitutional text.” See Will Baude, The Best Parts of the Kavanaugh Hearing (Volokh Conspiracy 9/5/18) (the incorporated video clip has it and I transcribed it from the video clip). Justice Kavanaugh did qualify by saying that the original public meaning is“informed by history, tradition and precedent.” Some have called originalism “fundamentalism,” evoking bibilical the literalist notion that the meaning of biblical text is fixed, ascertainable and timeless.” See Peter J. Smith & Robert W. Tuttle, Biblical Literalism and Constitutional Originalism, 86 Notre Dame L. Rev. 693, 684 (2011)(citing e.g., (p. 694 n.1 ) Cass Sunstein who believes that originalism “bears an obvious resemblance to religious fundamentalism,” (Cass R. Sunstein, Radicals in Robes, at xiii (2005)) and noting similarities and differences between originalism and biblical fundamentalism/literalism.) Of course, there are many shades of originalism (and fundamentalism/literalism) but I think the foregoing captures the core meaning, even when some like Justice Kavanaugh add some qualification which might depart from the literal statement of originalism. I am reminded of Martin Luther’s insistence on “sola scriptura” and the fundamentalist misuse of the term, for Church interpretations and traditions inform the text in a way that the text alone would not permit. See Wikipedia entry on “Sola Scriptura” (viewed on 10/6/18); and James L. Kugel, How to Read the Bible: A Guide to Scripture Then and Now (Free Press 2007) (persuasively making the argument that text from a different time and place does not provide guidance without interpretive devices and tradition that add layers of meaning not evident from the text).

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[Discussing textualists' claim to not consider legislative history in interpreting statutes, this is in a footnote]

But, inconsistently it seems to me, even the most ardent textualists – Justice Scalia in particular – have no problem relying on the Constitution’s “legislative history” – specifically the Chronicles of the Convention and, even more tenuously, the Federalist Papers to assist in interpreting the Constitution. See William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution 212-214 (Foundation Press 2016); and Justice Kavanaugh’s discussion of the Federalist Papers in the video clip at Will Baude, The Best Parts of the Kavanaugh Hearing (Volokh Conspiracy 9/5/18); is it fair to assume that Justice Kavanaugh’s careful study of these statements of some players’ “intent” does not affect his interpretation of the Constitution?; at a minimum he brings that knowledge to the task of determining the public meaning of the original Constitution . And, perhaps even more importantly, there is pretty good anecdotal evidence that circuit judges (and by extrapolation, Supreme Court Justices) actually do specifically consider, in the foreground or in the background, legislative history in their deliberations. Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. R. 1298, 1324-1327 (2018) (noting that in the sample, most conservative judges, even the most text-centric, consulted legislative history and concluding that the issue of use of legislative history “is no longer interesting and should be put to rest.”).

JAT Note: Those who have suffered through the foregoing may have noticed that in my footnotes I digress some, although there is some relationship. In my book, I offer an appendix on use and abuse of footnotes. Here are some excerpts of that appendix (both from Arthur A. Austin, Footnote*, Skulduggery** and Other Bad Habits***, 44 U. Miami L. Rev. 1009 (1990).):

“Happiness is a long footnote. Happiness for whom? For him who writes it?”
** Over the years the footnote has regularly provided a safe refuge for untenable hypotheses. Writers are inclined to behave as if they will be held less accountable for indiscretions committed below the text than in it. . . . Lunacy in small print is lunacy nonetheless, and it is particularly reprehensible when it is not even amusing.

So, I wanted to end this blog entry with at least something amusing.  At least this is tangentially related to footnotes, since I included over 3500 of them in the Practitioner Edition, In the movie Amadeus, the emperor stumbles to assess Mozart’s opera and comes up with the statement that the opera has “too many notes.” [The excerpt from Amadeus is here.]
MOZART: I don't understand. There are just as many notes, Majesty, as are required. Neither more nor less.
EMPEROR: My dear fellow, there are in fact only so many notes the ear can hear in the course of an evening. I think I'm right in saying that, aren't I, Court Composer?
SALIERI: Yes! yes! er, on the whole, yes, Majesty.
MOZART: But this is absurd!
EMPEROR: My dear, young man, don't take it too hard. Your work is ingenious. It's quality work. And there are simply too many notes, that's all. Cut a few and it will be perfect.
MOZART: Which few did you have in mind, Majesty?
EMPEROR: Well. There it is.