Good afternoon. Welcome to the Heritage Foundations Center and the tenth annual distinguished lecturer. The namesake was a remarkable patriot who carried out the founders vision of a Constitutional Republic before joining the Supreme Court he had a career of his own a congressman from a state legislator from this beaker of the house of representatives and professor at the Harvard Law School and interestingly enough also one of the most successful authors of the first half of the 19th century when he was 65 in that year his royalties keep him twice as much money as his salary at the justice of the Supreme Court. [laughter] when appointed the youngest justice to serve in one of the unions members appointed by president madison and took office the following year february of 1812. He made a significant mark of american law in his 33 years on the bench but his greatest contribution is his renowned commentary to set forth that philosophy of judicial restraint and was in the emirate by that philosophical approach from chief Justice Marshall so this lecture we celebrate his legacy to the United States. The previous lectures were delivered by clarence thomas, Justice Kennedy kennedy, professor harrison at the Virginia Law School judge brown. As our guest this evening are joining a distinguished group of judges and professors we have the honorable Brett Cavanaugh from United States court of appeals and a pointed end took office 2006. Before his appointment judge cavanaugh serve for more than five years in the white house in began as the associate counsel and was assistant to the president up until the time of his appointment. Throughout his career he has been a partner in private practice and an attorney in the office of the solicitor general with the number of distinguished judges that he clerked for and a graduate of yale college and also Yale Law School please join me to welcome our distinguished lecturer of 2017 brought cavanaugh. [applause]. Thanks general for that kind introduction i am honored to be here to deliver the lecture as general meade said having a profound influence as the Supreme Court justice and as a scholar i am honored to deliver a lecture in his name and particularly honored to be here with speakers Justice Kennedy and thomas and my former colleague i have not been a regular attendee at the lecture the last few years because every year seems to follow the same night as a basketball tryouts i coach in d. C. They sure i finally pulled rank and then moved it back one night so tonight i am with you. [laughter] last night with limited success trying to get 47 fit in sixth grade girls to listen to me. [laughter] i will try not to use my coaching voice with you. Coaching my daughters and the Basketball Team has been an important part of life the last six years sometimes im scrambling out of the courthouse to get to practice and i dont always transition that well and the last juror was frustrated i finally blew the whistle and yelled that the girls you cannot dribble through the zone press you have to pass the ball. There was silence and there is never silence one girl who i believe has a future as a standup comic said he is using his judge boyce. [laughter] voice and they all started to laugh at me. I love all those girls in with them in mind are also try not to use my judge voiced. I am grateful to the judge for my confirmation the wonderful letter he wrote for me in 2006 and others who helped me through the process you dont forget your confirmation process and mine was interesting. Because i was serving in the white house when i was nominated. I worked there 5. Five years before becoming a judge. So 12 years later it made me a far better judge of that legislative process with the National Security making. Of how the government operates at the highest level. By white house experience made me more knowledgeable and more independent because that gives the fortitude to say no. On the dc circuit indeed one senator asked my hearing noted i worked at the white house more than five years and said in his opening remarks this isnt justt salt in the wound, this is the whole shaker. [laughter] and this is true after the hearing about the senator, my mom said to me i think he really respects you as only a mom can. People often ask me whether the job is lonely or isolating and the short answer is that it can be if you let it. The date the presiden day the py commission to be a judge may 30th, 2006 dot that you remember those things, i promptly went to the Supreme Court and Justice Kennedy for whom i clerked with my family and Justice Kennedy and chief Justice Roberts present. Justice kennedy told me i could get to my chambers that afternoon and there would be a phone and computer and a task and no one would ever call me again. [laughter] so he advised me to get out and teach and speak and interact at the bar and students and something that he had regularly done and had continued to do for as many years on the Supreme Court. Anyway, i listened to the classes every year for the last decade i tried to get out too many events and visit schools and tonight im following his advice with the honor of delivering the story lecture when Justice Kennedy says something, i listen. Be and many other americans. I want to thank him not just for hosting me in the process back in 2006, but more importantly for the central role he played in leading the revival of the ritualism and american law. I cannot emphasize enough how significant he has been in changing the direction of american law. I think often they helped bring about a revolution in legal theory and doctrine. When we mention goe we mentioneo giants we also must celebrate general meese who was responsible for the important decisions in his role at the white house and attorney general and as attorney general more than any other attorney general he took an interest in constitutional theory and doctrine. He delivered a famous speech july 9 to the american bar association. Its a great speech and if i can give you an initial homework assignment tonight, it is this, go read the july 1989 speech but let me give you some highlights for now. The first greeted the members and said i know that it will be very productive. When i read that last week, productive meetings of the house of delegates, i wondered if that was the last line, but he proceeded to talk about how unpredictable the Supreme Court of the 1980s could be when rendering its judgments. He remembered what someone said when the case came down. The bad news is that the one. The good news is that it didnt win under the 14th amendment. He then said during the recent turn in 84, 85 continued to run in the variable constitutional force. He discussed three areas of the jurisprudence, federalism, criminal procedure and religion discussing federalism, he said it helps us better secure the goal on government. They said to argue with a demanding strict neutrality between religion and would have struck the founding generation as bizarre. The purpose was to prohibit tyranny and not to undermine the religion generally. Well said. In some views the general state of far too many were on the policy choices then articulate principles. He then noted in a critical passage that until very emerge as a coherent stance, the world will continue in this ad hoc fashions. He argued for the jurisprudence of her pajamas and a judge policies in light of principles and raghavan to remold the principles in light of policies. The speech struck a nerve in the american legal establishment and represented a call to attention and action for all those concerned about the rule of law and the rule of chords. He urged more attention as he put it to the words of the constitution for the framers of the constitution chose their words carefully, he said. It is sometimes said the constitution is a document of generalities. As i see it, the constitution is largely a document of majestic specificity which continue to bind us as judges, legislators and executive officials. So, if i could suggest another homework assignment today, it would be this. To block out 30 minutes of time and read the text of the constitution word for word. I guarantee that youll come away froyou will comeaway from n for the constitution specificity. The text of the constitution binds all three branches and again, thinking back to my confirmation process, i met with senator robert byrd at the process when i was trying to get confirmed. He said i would never forget it and at the start of the meeting he said he would never forget this meeting and it turns out he was right. He asked about my family and at that point in 2006 i said to 20o one year old daughter and he said i have two daughters, they are succeeding to 64. [laughter] then he pulled out his constitution, it was right there and i was prepared i had the same one is tattered now but i still have it. He read an article one language about the power of the purse and why did he do that . Because the text of the constitution matters and he cared about the public of the pe purse. [laughter] supernova 1985 speech helped advance the philosophy of the statutory interpretation. It is not confiscated, but it is profound and worth repeating often. The judges job is to interpret the law, not to make policy, so read the words of the statute as written and th in the text of te constitution as written dont make up the rights that are not in the constitution or shy away from the rights that are in the text of the constitution. Changing is for the amendment process in changing policy at the legislatures. Structure protects a liberty and courts have a role in the party is standing in enforcing the separation of powers and federalism when it simple but profound along with chief Justice Rehnquist and Justice Scalia and judge bork, silverman, ginsburg and many others in the 1970s and 1980s. He wanted the groundwork as the law for the judges as umpires and not policymakers. For the notion as he put it in 1985 the judges shouldnt be running at large in the constitutional force. I told him ou him how come i wok about the separation of powers and i suppose that wasnt a limiting selection of a topic for me because my judicial chambers at any point you would hear me saying to my clerks every case is a separation of powers case, and i believe that. Who decides is the basic separation of the core of so many legal disputes. The bread and butter on the dc circuit is interpretation of statutes. Usually when deciding whether an agency exceeded the Statutory Authority or limits that question of policing the balance between the legislative and executive branches or Administrative Law docket constitutes and the most important factor is the precise wording of the text. Listening to case after case, and i do not advise that for anyone who wants to remain sane. You would hear judge after judge asking the council about the precise wording of the regulation at issue. Statutory interpretation over the last generation. Statutory text matters more than it once did. If it is sufficiently clear, it is usually controlled into the text of the law is the law. By emphasizing this, Justice Scalia helped bring about a massive change on the Supreme Court in american law but more work remains. Certain aspects of interpretation are troubling and as i will explain a primary problem stands out. To begi begin, and overarching l for me is to make judging him in partial progress. Its not what the law is but what it should be. Be. Judges are umpires othe chargese should always strive to be a. In a Perfect World at least as i envision it, the outcome of cases wouldnt vary based on the backgrounds, political affiliations were policy views of the judges. This is the rule of the law and the judges on pioneer and who were not free to roam i and constitutional or Statutory Force as he or species sees fit but its the power system. Article one assigns the branch along with the president and the power to make the law. Article three grants the judicial power to interpret those law into controversies. They are encroaching on the legislatures article one power. The petition reads as a natural question how can we move towards the idea in our judicial system when the judges come from many backgrounds and have a strong ideological predisposition. To be sure on occasion the statutory provision may actually require the judge to consider policy and performed a common malfunction with the rule of evidence 501 is a good example that many of the cases involve interpretation of the statute text. Under the structure of the constitution, congress and the president , not the courts possess the authority to legislate and as a result, clear statutes are to be followed. Statutory text are not just common law principles and the text is as natural as a matter of politics and policy. It may be probusiness or prolabor unapproachable bank or consumer regardless they should follow the text where it leads and at the same time when the text of the statute is ambiguous rather than clear they be reso resold. It invites interpretations raised further questions and if there is textual ambiguity rely on the legislative history. Its the reasonable interpretation of the statute. Heres the problem and it is a major problem. Its only if the statute isnt clear but rather as ambiguous. We know why the statute is clear or ambiguous in how much clarity is sufficient to call the statute is clear and in the case without. There is no way for the judges to control enough ambiguity to cross the line where the courts may resort to the constitutional avoidance doctrine, legislative history, chevron deference. In my experience, and this is my personal experience, judges often go back and forth arguing over this exact point. One judge will say the statute is clear this would be the case and the other judge responds i think the text is ambiguous meaning one and another can be employed beside the case. I apologize because there is no right answer. It turns out there are no separate problems. They decide how much clarity is enough to call the statute clear if it is 6040 enough to call it clear how about ed 20. If we can agree on the threshold afterwards suppose the judges they call it clear only if it is 8020 or more in one direction. And even if we see 8020 is a necessary quality of clarity, how do we apply that to this text . Again, who knows. Determining it is not often possible in any rational way. Its difficult for the judges or anyone else to perform that kind of task in a neutral, impartial and predictable fashion. I tend to be a judge finds clarity morwho findsclarity more of my colleague perhaps more than a couple i probably applied something just a ballpark approach to 6535 in other words if it is 6040 its not ambiguous. I think a few of my colleagues and other judges around the country say 9010 rule only if the interpretation is at least 9010 would they call it clear otherwise the canons kicking. Who is right in that debate . No interpretation of 6040 is the correct one or better one. We could agree fo for a sample t we still have to figure out whether the questions are absent and that is a difficult task. So, the simple troubling truth is no definitive guide exists for determining if it is ambiguous and a considerable understatement the Supreme Court itself admitted that there is, quote, no test for identifying where recognizing the unambiguous language. The professor elaborated persuasively on this point arguing that there are no rules among the judges about just how to decide whether the text is ambiguous. As he puts it for making that determination, no here he helps. It is a judgment about the clarity of english and whether it is reasonable to read it in more than one way. The conceptual problem opens the door to a more practical problem. The judgments can be dangerous and can easily be biased by the strong preferences that the makers of the judgments withhold because the judgments of clarity turn on a little more than the judges in stakes sometimes it is harder to ensure that they are separating the policy views from what they require of them and it isnt a matter of the judges trying hard enough, they can see into the ambiguity and in a subconscious way as a practical matter of course, they dont make the clarity versus the ambiguity behind a veil of ignorance. The interpretation issues are briefed at the same stage of the proceedings of the judge who decides to open the ambiguity door already knows what he or she will find behind it. Unfortunately, moreover, the question plays right into what many consider to be the first of our professional training. As the lawyers were indoctrinated to find ambiguity in the clearest of the pronouncements, it is no accident that the most popular Law School Preparation exam book is titled getting to maybe. The problem of difficult clarity wouldnt be quite as significant if the issue is only at the margins but the outcome of many cases turns on the initial and often incoherent dichotomy between ambiguity and clarity and they are the linchpin of the statutory interpretation. A number of Supreme Court decisions implicated the clarity to consider the cases have turned unconstitutional. These were huge significant cases that turned to a significant extent on the question whether the relevant statute was clear or ambiguous. It is a difficult valuation of clarity and ambiguity. As the justice explained 25 years ago how clear is clear if it isnt abandoned the future battles over acceptance for the interpretations of the law will be polls and in fact theyve exactly this terrain was hugely significant cases each to a significant extent on the initial question of whether the relevant statute is clear or ambiguous all these cases came down to a personal question one subject to a certain sort no wonder people suspect the judges personal views are infecting these kind of cases. They are examples of the problems an