November 13, 2014

Hon. Robert Katzmann on Judges Judging Statutes

Affordable Care Act, Brianne Gorod, Hon. Robert A. Katzmann, Judging Statutes, King v. Burwell, U.S. Court of Appeals for the Second Circuit


by Brianne Gorod (@BrianneGorod), Appellate Counsel at the Constitutional Accountability Center and former clerk for the Hon. Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit. Gorod interviewed Katzmann about his new book, Judging Statues.

The Supreme Court made lots of headlines recently when it decided to hear King v. Burwell, a case about the meaning of the Affordable Care Act.  It’s a good reminder: although much of the talk about the federal courts focuses on constitutional questions, much of the work the federal courts do involves statutory ones.  Indeed, for Supreme Court justices and other federal judges, a significant part of their job—and an incredibly important part—is attempting to understand and give meaning to the laws passed by Congress. 

In his new book Judging Statutes, Robert A. Katzmann, Chief Judge of the United States Court of Appeals for the Second Circuit, provides readers with insight into how federal judges can—and should—go about that task.  As Judge Katzmann explains, “[o]ver the last twenty-five years, there has been a spirited debate in the courts, Congress, and the academy about how to interpret federal statutes,” with Justice Scalia championing the view that courts should “look to . . . the words of the statute, and to virtually nothing else.”  In his book, Judge Katzmann provides a compelling defense of the alternative view, arguing that courts should look to legislative history to help understand and give meaning to the laws that Congress enacts.  As he puts it, “In our constitutional system in which Congress, the people’s branch, is charged with enacting laws, how Congress makes its purposes known—through text and reliable accompanying materials—should be respected, lest the integrity of legislation be undermined.”

The work has already received considerable attention—for example, in Justice Stevens’ essay in The New York Review of Books, Jeffrey Toobin’s column in The New Yorker, Norman Ornstein’s column in The Atlantic, Tony Mauro’s story in the National Law Journal, Ronald Collins’ post on the blog Concurring Opinions, and on Brian Lamb’s C-Span Q & A program.   

            Here is a Q&A with Judge Katzmann about his book, conducted by Brianne Gorod:

Q1: You write this book from the perspective of a sitting federal judge, but it’s clearly informed by your prior experiences as an academic who studied the relationship between the branches.  How did you first become interested in this topic, and why did you decide to write a book on it?

I came to the bench with an interdisciplinary background – with a law degree from Yale and a Ph.D. in government from Harvard.  At Harvard, I was trained by scholars/public intellectuals/government officials Daniel Patrick Moynihan, James Q. Wilson and Richard E. Neustadt, who all believed that to understand government it was important to learn how government functioned.  And thus, in my work in Washington, D.C. at the Brookings Institution, Georgetown and the Governance Institute, I immersed myself in the governmental institutions I studied.  Much of my work focused on the challenges of governance, on the obstacles to and steps toward the more effective functioning of government. 

My involvement in court-Congress relations, in particular, began when Judge Frank M. Coffin of the U.S. Court of Appeals for the First Circuit, then chair of the U.S. Judicial Conference Committee on the Judicial Branch, asked if I could help the committee design an agenda for research having to do with courts and Congress, past, present and future.  The Committee on the Judicial Branch, charged in part with fostering healthy relations between Congress and the courts in the administration of justice, in those days consisted of judges, many of whom had been legislators representing both parties – Judge Coffin, Thomas Meskill, Abner Mikva, Donald Russell, Oren Harris and William Hungate, to name a few.  Working with Judge Coffin was an extraordinary opportunity; that collaboration and friendship over the next two decades produced projects, books, articles, and colloquia, and the creation of the Governance Institute.  Because of my long association with Senator Moynihan, I also had the opportunity to become involved in a variety of projects having to do with the branches of government. 

As a judge, I spend considerable time interpreting statutes, the laws of Congress.  Congress enacts laws on a wide variety of important topics (e.g., civil rights, the environment, health care, the economy), and those laws (and the interpretation they are given by judges) can have a profound impact on peoples’ lives.  It’s therefore important that people understand how judges interpret those laws.  So when I was asked by N.Y.U. School of Law to deliver the Madison Lecture, I thought the time was ripe for me to revisit the subject of interbranch relations and to offer reflections on statutes.  I would not have thought to expand the lecture into the book were it not for Adam Liptak of The New York Times, who recommended that I do so.  I am so glad that I took his advice; working with Oxford University Press was a wonderful experience.

Q2: In the book, you quote Senator Daniel Patrick Moynihan, a mentor of yours, as remarking upon the “degree to which the [nation’s] founders . . . thought about government,” and you spend the first chapter of the book explaining how Congress works and the relationship between the branches in our system of government.  How is your view of statutory interpretation informed by your views about government and the way it is supposed to work?  

The Constitution gives Congress the responsibility for enacting laws, and for the most part, the Constitution gives Congress the authority to decide what procedures it will use in crafting those laws.  In my view, judges should attempt to give effect to Congress’s meaning in the laws it enacts.  That requires understanding how Congress works.  The literature on statutory interpretation gives scant attention to how Congress actually operates and what Congress views as its work product that is essential to interpreting its laws.  I hope that Judging Statutes will help close that gap in the literature. 

Legislators and staffs clearly expect that the legislative history accompanying laws – conference committee reports and committee reports in particular – be read by courts.  When a statute is ambiguous, these legislative materials can help elucidate the meaning of statutory text, to understand what Congress was trying to do.  The view that legislative history should not be discarded is shared by legislators and staffs of both parties alike.  A recent study by Professors Abbe Gluck and Lisa Bressman confirms that for members and staffs, legislative history is the most important tool for understanding bills voted on in Congress.  That is not to say that all legislative history is equal, as Chief Justice Roberts has noted.  There is a hierarchy of reliability, with conference committee reports and committee reports at the top.  


Q3: You make a powerful case in the book that “Congress and agencies share an understanding as to how to discern legislative meaning that goes beyond statutory text.”  Why do you think that’s such an important point in defending the use of legislative history in statutory interpretation?

When legislators write laws, their first, indeed, primary audience is often the agencies

charged with interpreting those laws.  So how agencies use pre-enactment legislative history is instructive for courts to understand.  In addition, courts tend to defer to agency interpretations of ambiguous statutes, and thus it seems to me that appreciating how agencies use legislative materials is illuminating.  Those in agencies charged with interpreting and implementing the law view extra-textual materials as legitimate components of the legislative process, and they realize that legislators expect them to use those materials in ascertaining statutory meaning.  I argue that agency responsiveness to congressional signals other than statutory text makes sense from a policy and good-governance perspective of trying to interpret and implement the law consistent with legislative meaning. 

Q4: One of the primary arguments made by those who advocate for looking only at the text of laws is that it constrains judges and prevents them from imposing their own viewpoints on statutes.  In your book, you effectively argue that ignoring legislative history is more likely to expand judicial discretion than to cabin it.  Why is that?

When a statute is ambiguous, barring legislative history leaves a judge only with words

that could be interpreted in a variety of ways without contextual guidance as to what legislators may have thought.  Unmoored from the details of understanding that legislative materials can provide, the danger is that judges will interpret the law in ways that Congress did not intend, that they will “divorce law from life,” as Justice Breyer once wrote.  In other words, legislative history, even if it tells a complicated story, necessarily gives judges more information about Congress’s meaning than they would have without it.  Tellingly, even judges who believe in “textualism” when it comes to interpreting statutes often appreciate the importance of historical context when it comes to interpreting the Constitution looking at The Federalist Papers, for example, to help understand the Constitution’s meaning.

Q5: In your book, you take the reader through three cases for which you authored the Second Circuit’s opinion that were subsequently taken up by the Supreme Court.  Why did you decide to include cases, and what made you pick the ones you did?

I wrote my book with the hope that it would engage the interested citizen, lawyer and

non-lawyer alike. I wanted to write a book that was free of unnecessary legal jargon.  To make the discussion concrete and provide the reader a sense of the complexity of statutory interpretation, I thought it would be useful to examine cases I had to decide, including cases where I was reversed by the Supreme Court. 

In picking the cases, I tried to identify cases that illustrated different interpretive challenges facing the judges.  One case showed the limits of simply relying on text; there the issue was whether “any court” in the phrase “convicted in any court” means courts in the United States only, or anywhere in the world.  Another case highlighted the importance of understanding statutory purpose; there the question was whether “negligent transmission” in the postal context refers only to the actual delivery of mail or more broadly to negligent actions occurring in the process of transmission.  The third highlighted the value of definitive legislative history where the question was whether a part of the Individuals with Disabilities Education Act, providing for “reasonable attorneys’ fees as part of the costs” includes expert consultant fees.      

Q6: As you noted earlier, you’ve long been interested in the relationship between courts and Congress.  You even wrote a book titled Courts and Congress.  What are some ways in which the courts and Congress could more effectively work together going forward?

As I write in Judging Statutes, there are ways for each branch to better understand the

other.  At a basic level, the Administrative Office of the U.S. Courts and the Federal Judicial Center could offer orientation sessions and manuals for legislators and staffs about the workings of the courts; similarly, the Library of Congress could offer sessions and materials for judges and law clerks about the workings of the legislative process.  It would also be helpful for more former law clerks to work on the Hill, and Hill staffers to spend time in the courts.  

On the Hill, greater use of the offices of legislative counsel, which are composed of trained and skilled legislative drafters, would be helpful.  There are also ways to enhance legislative drafting by those who do not use the legislative drafting services.  An old idea is the use of a legislative checklist -- a checklist of common issues, for example, dealing with such matters as attorneys’ fees, private rights of action, preemption, statutes of limitations, effective dates, and exhaustion of administrative remedies.  Such a checklist could be useful in avoiding drafting oversights, clarifying legislative intent, and reducing burden on the courts.  As to legislative history itself, there are ways for legislators to more clearly signal authoritative legislative history materials accompanying legislation. 

Finally, a means by which courts can apprise Congress of how they interpret statutes is through a mechanism already in place, aptly described by Justice Ginsburg as one of “statutory housekeeping.”  As I describe in my book, this is a device which Judge Coffin and I principally designed with guidance from then Congressman Robert Kastenmeier, whereby statutory opinions of the courts of appeals identifying perceived problems in statutes – for example, grammatical glitches and ambiguities – are sent to Congress for its information.  The bipartisan leadership of the judiciary committees of the House and Senate have welcomed this effort as a way of supplying Congress with pertinent and timely information about possible problems in statutes.  The drafting offices of the House and Senate use these opinions as teaching tools about the drafting process for new staffers.  Carol Messito of the Administrative Office of the U.S. Courts and Russell Wheeler of the Governance Institute monitor this effort.  

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As Judge Katzmann notes at the end of his book, “Congress and courts are together engaged in an ongoing venture.  The better understood the legislature makes its laws through text and accompanying materials, the more likely that the judiciary will interpret those laws in ways consonant with congressional meaning.”  There may still be much work to be done in that regard, but with his book, Judge Katzmann makes a powerful contribution to each branch understanding the other—and the American people understanding both.