Senator Kennedy Questions Trump Judicial Nominee on Original Public Meaning (7/28/26)

Recently, Senator John Kennedy (yeah, the folksy speaking one) and a Trump judicial nominee discussed conservative dogma in Constitutional interpretation (dogma that also plays out in statutory interpretation because the Constitution is just a super-statute). The discussion starts here. Many originalists now genuflect to the interpretive God of “original public meaning”—in other words, they look for the meaning of the words as the meaning some imagined public audience contemporaneously with the adoption of the Constitution would have interpreted the words. Senator Kennedy wants to know why the meaning that some imagined public audience might matter more than the meaning the actual framers of the Constitution contemporaneously attributed to the words. Senator Kennedy nails the bankruptcy of this notion of the originalist adventure that has captured the conservative imagination. One of my favorite articles on this theme is Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575 (2011), here.

I write on a Federal Tax Procedure Blog which rarely deals with Constitutional interpretation. This Blog deals mostly with statutory interpretation, but the screwy conservative notions that affect original public meaning play out in statutory interpretation where conservative judges deploy dictionaries more or less contemporaneous with the statute text enactment to divine meaning rather than using the legislators’ own explanations (legislative history).

Side Note: Senator Kennedy (Wikipedia here) received his J.D. (basic law degree) from UVA Law School in 1977 (where he was executive editor of the Virginia Law Review) and thereafter a Bachelor of Civil Law (B.C.L.) from Magdalen College, Oxford, in 1979. He is plenty smart, sometimes masked by his folksy way of presenting himself. But that folksy way can often result in good discussions as above where he bests the judicial nominee spouting conservative dogma.

Two Highly Recommend Articles (One a Draft) on Law Text Interpretation (7/10/26)

I write today to recommend two articles on interpretations of law text—Constitution or statute. Text interpretation is text interpretation. However, text interpretation by originalist/textualist leaning judges considers extra-text “history” leading to ratification of constitutional text in interpreting Constitutional text but reject such history (commonly called legislative history) for interpreting statutory text. (Why that difference I hope you ask?) For originalists in interpretation (often but not always textualists) the permissible tools are those that focus on the original public meaning or some variant of that to some imagined audience including as some fear “Joe the Ploughman” with arguably marginal reading skills generally or for law text. See Jack N. Rakove, Joe the Ploughman Reads the Constitution, or The Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575 (2011), here.

The first article addresses the effects of Loper Bright. Lindsay L. Clayton,  Defending Agency Actions After Loper Bright: Sea Change or the Same Old Beach? 74 DOJ J. Fed. Law. & Prac. no. 2, 49 (July 2026), here. An Appendix for the article is here. Ms. Clayton is Assistant Director in the Civil Division’s Tax Litigation Branch. The article is quite good in assessing the effects of Loper Bright on DOJ’s civil litigation. One would have to assume that, prior to publication in the DOJ’s house organ, the contents were vetted and approved by at least some of the attorneys in DOJ responsible for positions before the courts.

Some comments on Ms. Clayton’s articles:

The article repeats (pp. 50-51) the Loper Bright claim:

The decision criticized Chevron for requiring courts “to ignore, not follow, ‘the reading the court would have reached’ had it exercised its independent judgment” and for “demand[ing] that courts mechanically afford binding deference to agency interpretations.”

I believe that Loper Bright claim was false or, in any event, overstated what Chevron actually did. My claim is that Chevron allowed judges to apply (not defer to) an agency interpretation only where they were interpretive equipoise (same as ambiguity) where they could not decide whether the agency interpretation or the opposing interpretation was best or not best. In that zone of equipoise, courts were simply applying the agency interpretation as a default rule, like the rule of lenity; there were not deferring to an agency not best interpretation. I develop my claim further in an article for publication in the ABA Tax Lawyer sometime in the near future. But consider:

• For a succinct statement addressing Chevron’s meaning of reasonable interpretation and the latitude it gave courts to apply their own best meaning. See Jon Newman (respected 2d Circuit Judge), On Reasonableness: The Many Meanings of Law’s Most Ubiquitous Concept, 21 J. App. Prac. & Process 1, 83 (2021), here (“It would probably be too cynical to suggest that [under Chevron] the courts are just accepting agency interpretations with which they agree and rejecting those they disfavor, but in some cases that almost seems to be what is happening. Clearly there is no one meaning of “reasonable” in the context of Chevron deference.”)
• Judge Newman’s insight is consistent with empirical research of large data sets of cases that commoted about Chevron but none said or reasonably implied that the court deferred to a not best agency interpretation. Rather, Judge Newman was saying that the court determined a best interpretation and applied that interpretation or were in  interpretive equipoise. For my research, see Is Chevron on Life Support; Does It Matter? (Federal Tax Procedure Blog 4/2/22; 4/3/22), here; and Chevron Step Two Reasonableness and Agency Best Interpretations in Courts of Appeals (Federal Tax Procedure Blog 2/9/23), here. 
• Following through on my claim, the question is what courts do after Loper Bright do when they face ambiguous statutory text where they cannot honestly say that the agency interpretation or the opposing interpretation is the best? I cover that issue in my article addressing interpretive equipoise in percentage ranges, but just think about that. Keep in mind that Loper Bright cannot responsibly command or be interpreted to command that there cannot be ambiguity after applying all the tools of statutory interpretation.

On Supreme Court U.S. (or is it U. S.) Citations and the Supreme Court's Tariff Opinions (2/22/26; 2/23/26)

This blog entry is a bit of a detour from the domain of federal tax procedure. Specifically, this blog presents two more or less fringe disparate subjects. I divide the blog into two sections. The first is mundane: whether to space or not to space between U. and S. in Supreme Court citations? The second is a disjointed foray into the Supreme Court’s tariff opinions handed down Friday:  Learning Resources, Inc. v. Trump, 607 U. S. ___ (2026), here (Slip Op.).

To Space or Not  to Space in U.S. (or it is U. S.) Citations, that is the Question

For those who review Supreme Court opinions in all official formats (Slip Opinion, Preliminary Print, and Final), the opinions format the citation to the official reports with a blank between U. and S.—e.g., Loper Bright Enter. v. Raimondo,  603 U. S. 369 (2024), here (Preliminary Print). I had not learned to cite without the space and had not paid attention to the Supreme Court's format (with space) until today as I was reading the slip opinion in Learning Resources, Inc. v. Trump, 607 U. S. ___ (2026), here (Slip Op.). So, I asked ChatGPT and received the following answer (with my prompt, with citations omitted):

Prompt: Please cite me authorities (judicial and otherwise) that discuss the difference between the Supreme Court's citation of its decisions as "U. S." (with a blank between U. and S. and other authorities (mostly commentary but also Courts of Appeals and case reporters) foregoing the blank between U. and S.

Chat GPT Response: 

The U.S. Supreme Court officially cites its own decisions using "U. S." with a space between "U." and "S." in the United States Reports (e.g., 5 U. S. 137), while The Bluebook, Courts of Appeals, most legal commentary, and case reporters standardize "U.S." without the space. This distinction arises from the Court's unique style conventions versus modern citation guides like The Bluebook, which enforce no space between adjacent single capital letters per Rule 6.1(a).

Supreme Court Practice ("U. S." with space)

The Supreme Court itself uses spaced citations in its bound volumes of the United States Reports, reflecting historical typography from early volumes like Marbury v. Madison, 5 U. S. (1 Cranch) 137 (1803).8 This format appears consistently in official reporter headings and the Court's published opinions.

Other Authorities ("U.S." without space)

The Bluebook: Prohibits "U.S." with a space, mandating "U.S." for United States Reports (e.g., Roe v. Wade, 410 U.S. 113 (1973)); spaces are reserved for abbreviations like "S. Ct." (Rule 6.1(a) and Table T1).

Courts of Appeals and State Appellate Guidance: U.S. Courts of Appeals briefs require "U.S." without parallels or spaces (e.g., Roe v. Wade, 410 U.S. 113 (1973)). California Courts of Appeal cite as "450 U.S. 544." Washington Supreme Court style sheet specifies "__ U.S. __" without space in examples.

Conservative Ninth Circuit Judges Unsuccessfully Question Constitutionality of Pass-Through Taxation without "Realization" (12/25/22)

We don’t normally encounter constitutional issues in federal tax. There are some, however. See e.g., Justice Ginsburg' successful constitutional attack in Moritz v. Commissioner, 469 F.2d 466 (10th Cir. 1972), cert. denied, 412 U.S. 906 (1973), memorialized in the movie On the Basis of Sex (see Sex and Tax (Federal Tax Crimes Blog 1/7/19) here, where the pre-Judge/Justice Ginsburg with her husband Marty (best tax lawyer ever) in the background succeeded in having a Code provision declared unconstitutional.  

Another instance not yet successful but imagined is asserted by a minority of the Ninth Circuit in a dissent to denial of petition for rehearing en banc. Moore v. United States, 53 F.4th 507 (9th Cir. 11/22/22), CA9 here and GS here, denying the petition from Moore v. United States, 36 F.4th 930 (9th Cir. 2022), CA9 here and GS here. 

While Moore is not a tax procedure case, I mention it because it illustrates the lengths to which conservative-bent judges will go to try to restrain the federal government in a way that can throw a monkey-wrench into settled expectations of our tax system. They often mount these attacks in tax procedure cases, with the APA a tool of their angst (see Bryan Camp, The APA Is Not A Hammer (Procedurally Taxing Blog 6/24/22), here. The judges on the Moore dissent were authoring Judge Bumatay (Trump) and joiners Ikuta (Bush), Callahan (Bush), and Vandyke (Trump). A frequent target for such types is the administrative state. The target this time was Congress in enacting a statute that required a type of pass-through taxation for certain foreign corporations. By pass-through, I mean requiring the owner of an entity to include in the owner’s income for tax purposes the income earned by the entity even if the income is not distributed from the entity to the shareholder. Readers of this blog who, I hope, are familiar with the tax structure we have, know that there are any number of pass-through entities that are essential to the tax we have. To mention a few, S Corporations, partnerships, and some foreign corporations. I cannot recall any serious claims by serious people that the pass-through taxation was unconstitutional.

Citing History in Support of Statutory Meaning (8/30/20)

This is an interesting post on history of legislation in arguing for or explaining the legislation.  Eugene Volokh, TMH (Too Much History), a Form of TMI: Advice for Law Students and Young Lawyers (The Volokh Conspiracy 8/23/20), here.  Professor Volokh laments that, in arguing or just stating a position, writers often provide too much history rather than stating what the law (statute) is. 

An excerpt (longer):

One should generally resist this temptation. Judges are busy people, whose main goal is to figure out the law that is currently applicable to these facts, and then to apply it. The history is sometimes relevant to understanding current law, but often it's not. Give no more history than necessary to show the current law; and that's often zero history, especially if there's a solid binding precedent you can quote for the current rule.

My sense is that such TMH often stems from what I call the "data dump" impulse: You've done a lot of research, learned a lot (including the history of how the law developed), and now you feel like putting it all down on paper. That's fine—but once you write it down, go back over it in your editing passes, and delete everything that's not really necessary to proving and applying the current rule.

Of course, sometimes there's Not Enough History; sometimes understanding how the law developed helps explain what some ambiguous term means, and how it applies in this case. (Perhaps, for instance, you might think that the judge could be distracted by the Gertz principle, which he might already know; if so, you might note that Dun & Bradstreet limited Gertz to speech on matters of public concern.)

But even then, I suggest stating the current rule at the outset, which may help you see just what history you need to include to supplement the current precedent. And in my experience, TMH is much more common in law students' work than Not Enough History.

JAT Comments:

Baude NYT Opinion Piece on Originalism and My Questions (7/10/20; 7/13/20)

I alert readers to William Baude's excellent opinion piece in NYT yesterday:  Conservatives, Don’t Give Up on Your Principles or the Supreme Court (NYT 7/9/20), here.  For persons interested in constitutional interpretation (and the subset of statutory interpretation, both being interpretations of law), I recommend the article.  Baude, here, is a professor at the University of Chicago Law School.  I have cited Baude frequently on this blog.  See here.

I was going to leave a comment on the NYT page addressed to Professor Baude (although not expecting him to respond to a comment on the News page but hoping to draw responses from others).  But, alas, I could not figure out how to leave a comment.  So, I will post here my intended comment to the opinion piece in the hope that any of the readers here might want to comment either on this blog page or by email to me at jack@tjtaxlaw.com.

The comment is:

I address this question to Professor Baude (who is probably too busy to respond) but encourage anyone else having ideas on my comments to weigh in. 

Professor Baude, 

I read your NYT op-ed today with great interest, since I became interested in statutory (and, by extension,  constitutional) interpretation incident to teaching tax procedure at the University of Houston law school.  I have read a lot of your work and find it generally excellent, even when I do not necessarily agree with it.  Always worth considering.  So thank you for your continuing offerings on this subject. 

You say good things about originalism.  I am curious about what brand of originalism you find most attractive.  For constitutional interpretation, my sense is that most originalists claim that they search for the "original public meaning." Original public meaning is not what the drafters meant by the text drafted and approved but what some mythical contemporaneous public person not involved in the legislative process would have interpreted the words to mean.  Jed Rakove tongue in cheek says that might be Joe the Ploughman.

Whose Intent is Relevant for Interpreting Text -- the Drafters of the Text (Constitution or Statute) Or the Mythical Contemporaneous Public Person, Say Joe the Ploughman? (7/8/20)

In Chiafalo v. Washington, ___ U.S. ___, ___ S.Ct. ___ (7/6/20), here, the Court held (from the Syllabus):  “A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President.”  I’ll just take that bare holding (without nuance) as stated in the quote.  What I want to address today is the majority opinion in which the draft, Justice Kagan, and seven other Justices joined (except that Justice Gorsuch joined Justice Thomas’ consent for the part relevant to this discussion).

I speak here of the proper referent when looking to the original meaning of text—in this case, constitutional text but also including legislative text.  Much bandied about by conservatives and libertarians is the notion of “original public meaning” which is usually refers to the meaning that some hypothetical hearer or reader of the text (constitutional or legislative) might give the text at the time of adoption or enactment.  In Bostock v. Clayton County, 590 U.S. ___, ___ S.Ct. ___ (6/16/20), here, a statutory interpretation case, the Justices seem to sign onto the notion that original public meaning was the proper referent rather than the intent of the legislators.  See Supreme Court Case on Statutory Interpretation (Federal Tax Procedure Blog 6/16/20; 6/24/20), here.

In Chiafalo, a constitutional interpretation case, the majority did not mention any notion of referring to original public meaning and instead referred to the words of the Constitution and the words of the Framers.  In his dissent, Justice Thomas takes the majority to task on this issue as follows (dissenting opinion p. 12):  “[T]he Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution.”  The majority opinion does not frame its use of the Framers’ words as being used solely to determine the original public meaning.

So, which is it?  I don’t know.

I do know that the drafters of constitutions or legislation is done not by mythical members of the original public but by duly chosen representatives (either in a constitutional convention or a legislature).  They were chosen to act for the constituencies they represented.  If representative democracy means anything, surely it means that these chosen representatives speak for the communities they represent and their intentions mean something.  What are they—potted plants?  (Evoking the famous words of Brendan Sullivan in the congressional hearings in the Iran-Contra scandal, see Wikipedia here.  To know what their intent (and by representation their constituencies’ intent), what they said is relevant  to the interpretation of the text.  What some mythical person at the time, like Joe the Ploughman, might have thought the words meant is not really relevant in a representative democracy.  (On Joe the Ploughman, see Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575 (2011), here.)  If we are talking about lenity or some similar concept for penalties, that is another issue because the public's ability to discern the meaning from the text is relevant, but if outside that context, the drill ought to be to interpret the statute in a manner consistent with the text and the intent of the representative drafters.

That is why I continue to think that, particularly in my field of interest (taxation), the legislative history is worthy of consideration.  Generally, tax legislative history is pretty good because of the quality of the nonpartisan Joint Committee Staff that has a substantial hand in the process of producing legislative history.  That does not mean legislative history should control.  Some legislative history is persuasive; some is not.  Like any other evidence, the judge must be discerning.  It is their job to be discerning and not throw out the baby with the bath water.

It's All About Interpretation (6/4/20)

I have written often on statutory interpretation (including subsets related to deference to agency interpretation).  Statutory interpretation is a related topic to constitutional interpretation.  For example, originalism has its principal application to constitutional interpretation, but the originalist interpretive strategy can apply equally to statutory interpretation.  And, interpretation applies equally to biblical interpretation.  As my favorite Hebrew Bible scholar, James Kugel, says, it is all about interpretation.  Kugel says that it is not about what the original author(s) (or redactors in the current lingo) meant, it is how it is interpreted at the critical moment in time – in the case of the Bible when the Jewish community decided that the text was canonical for them (long after, in most cases, it was written (or finally redacted)).  (His principal anecdote proving his point is the Hebrew Bible book Song of Songs (Song of Solomon in the Christian New Testament).  That process of going from original writing through the redaction and community adoption process took a long time, often hundreds of years.  And then, once canonical, it is about how the community of faith interprets it over time to meet the community needs.  (Great midrash about how the text can expand or change in interpretation over time, a process that can equally apply with constitutional and statutory interpretation.)

There was no (or little) lapse of time between writing and adoption of the constitution and statutes, where the two are roughly contemporaneous (although both get reinterpreted over the years to meet the needs of the community).  At any rate, I thought this offering, here, from John Sexton, a prominent legal scholar and force of nature, talking about his seminar at NYU might be interesting to readers of this blog.  The reading list for Sexton's course is here,

Disclosure:  I am a long-time Brooklyn Dodgers fan.  And a long-time John Sexton fan (he interviews John Sexton).  And when those two flow together in an interview with Bill Moyers to talk about the confluence of baseball, particularly baseball through the Brooklyn Dodgers, and religion, particularly with sacred texts such as the Bible and the Constitution, well that is irresistible .

This comes up as I am considering offering a course at my Church on Sexton's book, Baseball as a Road to God, here.

BTW, it strikes me that there is a further parallel at least for statutory interpretation.  The analog with Chevron deference is that the religious community, in whatever form, often "defers" to interpretations offered by their rabbis, priests, pastors, shamans or whatever, rather than making its own individual interpretations de novo (as a lawyer would say) or sola scriptura as Martin Luther might say.  The analog is imperfect, but, I think, worth considering.

On Judge Richard Posner (11/18/19)

I recently posted the following entry.  The Notice of Deficiency (Federal Tax Procedure Blog 11/8/19), here.  In that post, I had the following concluding paragraph on the history of the seminal tax decision in Helvering v. Taylor, 293 U.S. 507 (1935), here:

Finally, if you really want a better--dare I say more holistic--understanding of Helvering v. Taylor, I recommend that you read Judge Learned Hand's decision in the Second Circuit that preceded the Supreme Court case.  Taylor v. Commissioner, 70 F.2d 619, 620-621 (2d Cir. 1934), here, aff’d Helvering v. Taylor, 293 U.S. 507 (1935). And, if you don't know who Judge Learned Hand was, you should.  See Wikipedia entry here.

I write today on another, later generation appellate judge, a giant in the law, Richard Posner, retired from the Seventh Circuit Court of Appeals.  (Wikipedia here.)  The inspiration for today’s blog entry is this blog: Eric Segall, Solum on Posner and the Descriptive/Normative Gap in Originalist Theory (Dorf on Law 11/15/19), here.

Starting at least by the late 1990s while teaching Tax Procedure and Tax Fraud and Money Laundering I always had my students read at least one Judge Posner opinion, not just because it was on topic but also because of the quality of the legal analysis that Judge Posner usually displayed.

Professor Segall quotes Professor Solum as follows:

I have only read a fraction of Posner's judicial decisions, but on the basis of that fraction, he is, in my opinion, one of the greatest judges in the history of the common law--and the greatest American judge of his time.

The discussion centers around originalism, but Judge Posner’s opinions in the tax law and other areas of the law are wonderful.  Here are some that I have used in teaching (I located these on quick searches of my Federal Tax Procedure book and the latest edition of my Federal Tax Crimes book):

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).

* * * *

[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).

* * * *

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