University of Notre Dame

Remarks at Notre Dame Law School

July 6, 2023

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Brett M. Kavanaugh*

During the Notre Dame Law Review’s 2023 Federal Courts Symposium, students and faculty gathered in the McCartan Courtroom in Eck Hall for a conversation with Justice Kavanaugh.  Dean G. Marcus Cole moderated and fielded questions from attendees.  Highlights from the event, adapted for print, are reproduced below.  Questions and responses have been lightly edited for readability and clarity.  Questions are presented in bold, followed by Justice Kavanaugh’s responses.

First, I want to welcome Justice Kavanaugh.  You’re always welcome here at Notre Dame, and we’re always excited to have you here.  Thank you for coming.

Thank you, Dean Cole, for having me, and thank you for the introduction.  It’s wonderful to be back at Notre Dame.  This is one of the finest law schools in America, with a spectacular faculty and wonderful students.  It’s great to be back for this Symposium, which Professor Barrett started—I guess student Barrett started—when she was on the Law Review herself.

I was here for the symposia in 2014 and 2017.  I was introduced in 2017 by Professor Barrett when I was on the D.C. Circuit.  I’m confident that neither of us had any idea what was to happen to the two of us over the next few years.  And it’s wonderful to be her colleague.  What a great representative of Notre Dame Law School and of Notre Dame.  She is a great friend and spectacular judge and colleague.

Being back at Notre Dame, I’ve hit it all in the last twenty-four hours.  I came in, and I think I’ve hit the Notre Dame experience: I went to the women’s basketball game yesterday—which is a great team; I went to the 10:00 PM Mass in Pangborn Hall last night; and then today’s Symposium.  It reflects Notre Dame: academic excellence, the spiritual foundation, the Catholic tradition of service to others, and the school spirit reflected in the sports program.  So in twenty-four hours, I feel like I’m touching it all.  Thank you for having me again, Dean Cole, thank you for everything you are doing to lead this fantastic law school.  I appreciate all that you’ve done.

The breaking news on CNN this morning was that the Court was issuing opinions for the first time in three months.  There was all kinds of speculation as to the delay and why it’s taken so long to issue their opinion.  Could you comment on the news of the day?

Well, we’re off and running.  We issued an opinion by Justice Barrett today.  I am confident they’ll all be out by the end of June.  So I don’t think anyone needs to worry.  [audience laughter]

I don’t view that as news.  It’s just coincidence of which mix of cases were in October and November.  And I don’t think it’s—they’ll be out by the end of June.  They’ll be out, and we’re off and running today.

Does your decision to stop at using traditional tools of statutory interpretation in American Hospital Association v. Becerra return to the letter of Chevron v. Natural Resources Defense Council, Inc. or reject its spirit?

Great question about Chevron.1  Chevron is, of course, the case at the heart of administrative law scholarship and decisionmaking over many decades now.  And I think there are two ways to look at Chevron and two ways it’s applied.  This is going to get into the weeds, but we’re at an administrative law conference.  You’re either a footnote-nine Chevron person, or you’re a non-footnote-nine Chevron person.  I’m a footnote-nine Chevron person.  Footnote nine in Chevron says that you apply all the traditional tools of statutory construction to try to resolve any ambiguity in the statute.2

And the way I’ve applied it for twelve years on the D.C. Circuit and now on the Supreme Court is once you apply all the traditional tools of statutory construction, you get an answer.  At least unless it’s a term in the statute like “reasonable” or “appropriate” or “feasible,” in which case, that’s actually more of a State Farm3 issue (to really get in the weeds of administrative law).  And so, I think American Hospital4 and other cases reflect the way I’ve applied the doctrine, which is: use the tools of statutory construction to resolve ambiguities.  And when you do that, you usually get an answer.  If it’s a term like “reasonable” or “feasible” or “appropriate,” then that’s a question of, “Did the agency act within the authority granted to it by Congress?”  In other words, was it reasonable and reasonably explained?  And you’re a little more deferential in that realm.

So I view our job, as the Chief Justice famously said, like being an umpire, like being a referee.5  Our job is always to think about our place in the separation of powers, but to police the line between the executive and Congress, and to make sure that the executive is not exceeding the boundaries set by Congress.  I don’t think we should be too aggressive or too deferential.  I think we should just try to do what footnote nine of Chevron instructed us to do: to use the traditional tools of statutory construction, figure out the best reading of the statute, and figure out then whether the executive crossed that.

And the key to being a good judge—one key—is to be consistent and to apply that method no matter who the parties are, no matter which administration it is, and no matter what the issue is, whether that’s an environmental issue, labor issue, immigration issue, what have you, and to try to be consistent over time.

There are non-footnote-nine Chevron judges who I think look a statute and say, “That’s complicated.  I’m deferring to the agency.”  That’s a simplistic overstatement, but that’s the kind of the philosophy I think you sometimes hear associated with Chevron.  But to me, from day one on the D.C. Circuit, that’s never been the way I’ve approached it or I’ve taken footnote nine.

Related to that, on Auer deference,6 a similar doctrine for interpretation of regulations, in a case called Kisor a few years ago, we emphasized footnote nine from Chevron by analogy and emphasized that you should really try to resolve the ambiguities in the regulation using the traditional tools of interpretation, as well.7  So I guess that means I don’t think Chevron plays much of a role in a lot of cases.

Continue reading in the print edition . . .

©2023 Brett M. Kavanaugh. Individuals and nonprofit institutions may reproduce and distribute copies of this Keynote in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Justice, Supreme Court of the United States.  These remarks are adapted from a conversation held at the Notre Dame Law Review’s 2023 Federal Courts Symposium on “The History and the Administrative Procedure Act and Judicial Review,” which took place on January 23, 2023, at Notre Dame Law School.  The remarks are lightly edited for readability and clarity.

1Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

2Id. at 843 n.9 (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.  If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” (citations omitted)).

3Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).

4Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022).

5See Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) (statement of Judge John G. Roberts, Jr.) (“Judges are like umpires.  Umpires don’t make the rules, they apply them.  The role of an umpire and a judge is critical.  They make sure everybody plays by the rules, but it is a limited role.  Nobody ever went to a ball game to see the umpire.”).

6See Auer v. Robbins, 519 U.S. 452 (1997).

7Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (citing Chevron, 467 U.S. at 843 n.9).