MARTHA MINOW: Hello, everybody. I'm Martha Minow,
still the dean, and it is my great,
great pleasure and honor to introduce the
Justice Antonin Scalia lecture. This is a new lecture series. It was established
at the law school, and this is only
the second one ever to happen given by an anonymous
donor to promote and advance understanding of the
founding principles and core doctrines of the United
States Constitution. The speakers are drawn from
fields of political science, history, philosophy,
law, government, religion and related disciplines,
although this is only the second speaker. And boy, we've set a
very high standard. The person chosen to
give the Scalia lecture should be a scholar or figure
of high distinction, who through his or her work,
research, writings and teaching elucidates the
principles of America. I can't imagine a better person
for this than Justice Elena Kagan and we are so honored to
have Justice Scalia's sparring partner, hunting partner,
and friend to join us here. To call Justice Kagan a friend
of Harvard Law School of course is an understatement. You all know her as an
alum, as a professor, as the transformative
dean who brought us so many things, including
this very building and this very room. But we can talk about
that another occasion. We are so grateful to you,
Justice Kagan, for being here. She will be interviewed by
our very own and very beloved John Manning. John Manning, the Bruce
Bromley professor of law who is also the vice dean, also
a distinguished contributor to the understanding
of American law, American constitutional
law, administrative law. I'm going to shut up because
you're not here to hear me. But I will say this. These two people,
these two people, have been living
through and helping to shape the revolution in
how statutes are interpreted in the United States and how
that interpretation actually reflects our fundamental
principles of government. Watch it and learn. Thank you so much. [APPLAUSE] ELENA KAGAN: That
sounds important, John. We'd better put on a show here. JOHN MANNING: Yeah, seriously. Thank you, Dean Minow. So Justice Kagan,
very nice to see you. Thank you again for being here. So let's just jump right into
the statutory interpretation questions, which is what
everybody's here to hear. My first one is this. ELENA KAGAN: We
can't chitchat first? JOHN MANNING: I think we'll
just go ahead and get statutes. that's what the poster said. So you and I actually went
to law school together. I was class of 1985, you were
class of 1986 as you know. And-- ELENA KAGAN: That
means I'm younger. JOHN MANNING: Yes, that is true. So I thought I'd
start by asking what was statutory interpretation
like in our day when we were law students? It was very different
from the way we teach statutory
interpretation here at the Harvard Law
School today in 2016. So what was it like
from the perspective of the class of 1986? ELENA KAGAN: I'm
not sure if somebody said to me statutory
interpretation, I would even really quite
have known what that meant. I mean it was not really taught
as a subject, as a discipline. You sort of had to pick
it up where you could. There was no lead
read kind of course, in the way that students
here and in other law schools have it. All of the first year was, or
almost all of the first year, was common law subjects. So you never had really
to deal with the question of how to read a statute. I think that the
first time I started thinking about a
statute, funnily enough, was in my tax class, in my
second year of law school. And it's like, oh,
that's a statute and it's all complicated
and hard to read and-- JOHN MANNING: Has words. ELENA KAGAN: --it has words that
you have to make sense out of. And I got through three
years of law school no problem without
anybody really ever saying anything
to me about the method of statutory interpretation
or about possible methods and the choice between
them and among them. I think to the extent that
people talked about statutes, to the extent that they did-- I mean the first point, I
guess, is that they just didn't. But to the extent that
they did, the enterprise was very different too. And here we are in
the Scalia lecture and I would say that
Justice Scalia had more to do with this than anybody. Gosh, what should
this statute be? More than what do the
words on the paper say? How do we decide what they say? How do we decide how
to give effect to them? It was much more policy
oriented like we're pretending to be
congressman as opposed to what I think of now a
statutory interpretation as where I'm a judge
trying to figure out how to give meaning,
how to interpret, how to understand the text. JOHN MANNING: So
back in the day, there was less focus on
what the role of the courts was in the enterprise, what
was their legitimate job in interpreting statutes? And it was more about
the particular moment of what makes sense. Is that a fair statement? ELENA KAGAN: Yeah, I think
that's probably true. I mean obviously part of it,
here we are in law school and we think we're sort of
the masters of the universe trying to figure out what
the world could be like. And there's a place for that. But yes, I think
that there was just not a whole lot of
attention to the fact that when judges confront
a statutory text, they're not the
writers of that text. They shouldn't be able
to rewrite that text, that there is a text that
somebody, the lawmakers, has put in front of them, and
that what you do with that text is a very different
enterprise than the enterprise that Congress has undertaken
in writing the text. And I think probably there
wasn't that conversation about the difference in role to
the extent that there is today. JOHN MANNING: So you
said a moment ago that Justice Scalia ushered
in a change in attitude. So I guess I'd
have two follow up questions to my last
one, which are one, how would you characterize
what your court does now sort of the way of
thinking about statutes? Just in practical terms when
you get a statutory case, how does your court approach it? And then I guess the
second is sort of, how do you feel that Justice Scalia-- you said that he shaped
this more than anyone else. So how did he
shape the way eight other justices do business? ELENA KAGAN: Yeah. So I think Justice Scalia is
an incredibly important figure in the court in many ways. I mean, we all sort of like to
think, oh, we're Supreme Court justices, that kind of-- JOHN MANNING: You are. ELENA KAGAN: Yeah. The truth of the matter is
you wake up in 100 years and most people are not going
to know most of our names. But I think that that
is really not the case with Justice Scalia who I
think is going to go down as one of the most
important, most historic figures in the court. And there are a whole
number of reasons for that. Which this is about
statutes, so let's just-- but I think the
primary reason for that is that Justice Scalia
has taught everybody how to do statutory
interpretation differently. And I really do mean pretty
much taught everybody. There's that classic phrase
that we're all realists now. Well I think we're all a
textualists now in a way that just was not remotely true when
Justice Scalia joins the bench. And-- JOHN MANNING: Even
Justice Breyer? ELENA KAGAN: Well,
Justice Breyer might be a little bit of an
outlier, might be a little bit. In certain ways he too
starts with a text. Justice Scalia for that
matter is a little bit of an outlier in ways
that we can talk about on the current court. But what I think sometimes
he doesn't really understand is how much the
center of gravity has moved towards
the kinds of things that he's preached
for quite some time, even at the same time as
he's still a little bit on the edge of a spectrum. But his focus on statutory text
on the idea that, yes, Congress has written something
and your job truly is to read
and interpret it, and that means staring
at the words on the page. And it's actually
remarkable to me how different that is
than what used to be. I'll give you an example. JOHN MANNING: Sure. ELENA KAGAN: So this is my
first year on the court, there's a case
called Milner, and it was just fascinating to me. It was a real sort
of eye opener. It was a case about FOIA, the
Freedom of Information Act, and particularly about
one exemption in FOIA. Basically what
FOIA does is to say there's a very broad range and
obligation for the government to disclose
information, and then it has a number of exceptions
of what kinds of information the government doesn't
have to disclose. And this case dealt with
exemption two, which I'm going to say had something
to do with the personnel practices and
rules of an agency. So personnel rules
and practices, or something like that. But from that, somehow
the lower courts had created this whole
gigantic superstructure of all these other
things that agencies didn't have to disclose. Not just stuff relating to
their own personnel procedures, but pretty much anything
whose disclosure would somehow interfere
with an agency's operations. All right? And when you read the
opinions-- and these were opinions by really
fantastic judges, excellent judges on the
DC circuit and elsewhere. --but when you
read the opinions, they didn't get to the
text of exemption two until like page 17 in
a footnote someplace. They were mostly-- JOHN MANNING: And they didn't
really talk about it seriously even then. ELENA KAGAN: Even then,
right, because they wouldn't have done what they did. I mean they were mostly
about two things. I mean extensive,
extensive things about legislative
history, like everything that every member of Congress
might have been thinking about when they wrote those. I think it was like
15 words or something. JOHN MANNING: 12. ELENA KAGAN: 12. Was it 12 words? JOHN MANNING: 12. So I've written
about Milner twice. Yes. 12 simple words, yes. ELENA KAGAN: And then a lot
about maybe like grand purposes or just what Congress must
have been thinking or something like that, which was really sort
of like what makes sense to us. And it was just a
wildly different form of interpretation than
anything written by anybody on the Supreme Court now. And I remember I walked in to-- I was assigned this opinion. It was one of my
earliest assignments. --and I walked into conference
one day and Justice Scalia and I are on the same
hall and we often sort of like walked
down that hall and walk into
conference together. And I said to him, I said it
was such an eye opener for me just sort of seeing this old
time statutory interpretation and I think he changed it, such
that you just couldn't imagine anybody writing the
kinds of opinions that I was sitting there reading
in preparation for writing this opinion. And, of course, what
I said in the opinion was that they were all wrong,
that this was just not the way to do statutory interpretation. JOHN MANNING:
Well, let me let me ask you a question about that,
push you on that a little bit. So this is an opinion
that I've read many times and the exemption 2 governs
records that are related solely to the internal personnel rules
and practices of an agency. And what the DC circuit
had said is well, what we worry about is
things that personnel do. And so what was at
issue in this case was what are called
ordinance maps. So the Navy has these
maps that tell you something very
important, which is how far apart to store the
bombs so that if one goes off the rest of them don't go off. It's how far apart
you store them so you don't have a chain reaction. ELENA KAGAN: You can see
why the government would not have wanted to do
disclose these things. JOHN MANNING: So it's
probably something the government
shouldn't disclose and it's probably something
that a sensible statute wouldn't require them to disclose. And what the government
said was personnel use these maps to decide how
far apart to store the bombs. And the DC circuit had
developed this thing that had been on the books
for about 30 years and Congress hadn't changed it. And so what Justice
Breyer said-- he was the lone dissenter
and what he said is, look, our obligation is to
interpret a statute like the Freedom of
Information Act to make sense, and in particular
to indulge Congress kind of the presumption
that it's coming up with a sensible system of
disclosure, what to disclose and what not to disclose. So why do the 12
simple words trump that kind of commonsensical
approach to statutes? ELENA KAGAN: Well, I mean I hate
to be simplistic about this, but mostly because Congress
wrote the 12 simple words and didn't write
the kind of statute that I think Justice
Breyer had in mind. I mean Justice Breyer's opinion,
it's a very fine opinion and it presents a
different view of how to understand the enterprise. But I think as the opinions
reveal, not my view. I mean it would be one
thing if Congress had said-- it's a possible kind
of statute to pass-- Congress had said, we think that
the government should disclose everything except
things that it would be unreasonable to disclose. I mean you could-- JOHN MANNING: It does
it sometime, sure. ELENA KAGAN: --you could
write a statute like that. There are plenty
of statutes that in somewhat fancier language
basically say the inquiry is one into reasonableness. And those statutes essentially
delegate, maybe it's to the agency or maybe
it's to the court depending on the kind
of statute, delegates an inquiry of the kind that I
think Justice Breyer would have wanted us to carry
out, which is, is this reasonable and should
the agency have to disclose it, and would it be a better world
if the agency were able to keep it secret rather
than disclose it? But Congress just didn't write
that statute in this case. Congress wrote a statute which
is quite clear that there's this extremely broad disclosure
obligation except with respect to very specific
enumerated exceptions. And there's some play
in the joints of each of those exceptions,
but not nearly as much play in the
joints as a statute that just says do what seems
reasonable would give you. And I think that
matters, that Congress has decided which way
it wants to do this and how much discretion
it wants to give to, whether it's an
agency or a court to decide what makes sense. And to turn it into a statute
that's just about, oh, we get to decide what's
reasonable, is really you serve Congress's role. JOHN MANNING: So Congress could
have left it to the courts or the agencies to strike
the balance of what should be disclosed and what shouldn't? But you're saying
Congress actually in this case chose to
strike the balance itself and did so in a
very detailed way. ELENA KAGAN: A better
and more concise way of saying what
I tried to say. Can you just come around
with me and I'll speak in like long paragraphs
and you'll just sort of get to the nub of the thing? JOHN MANNING: I think that
would be a good job actually. [LAUGHTER] So I'm going to ask you a-- ELENA KAGAN: You're blushing. I make you blush, John. [LAUGHTER] JOHN MANNING: Fair enough. ELENA KAGAN: I
should be blushing. JOHN MANNING: So this may be
a bit of a delicate question, but you kind of sound
like a textualist. Would you describe
yourself as a textualist? ELENA KAGAN: Yeah,
I think I would. I think I'm pretty textualist. I'm very textualist
in orientation. I'll give you a
couple of caveats to that, which I think honestly
oughtn't to be caveats. I mean it should be just things
that people understand as part of the textualist enterprise. But because some people don't,
I'll express them as caveats. And the first is that-- I guess these are related-- but is that to do
textual interpretation is to look at a whole text. And I think everybody
on the court says this, and we sometimes disagree
about what this means and about the extent to do it. But I think everybody
on the court recognizes that this is true
that even when the question is about what a single word means
or what a single phrase means, that the way to figure out that
question is not just to stare at that single word or phrase. You don't put
blinders on, that when you do textualist
interpretation you look at that phrase, but also
many other phrases that share common features of the word or
phrase that you're looking at. You look at the
design and structure of the statute as a whole to
see what the statute is trying to do, and how this
particular phrase fits with what the statute is doing. And so you do. You look at context
and structure, and that's a critically
important part of textualist
interpretation as I think people now sensibly do it. And I guess the thing that's
sort of related to that-- it's really just
part of the same-- is that I like to think
that textualism involves some amount of common sense. Which is to say that if your
understanding of some word or phrase would produce some
result that seems pretty nuts, and nuts in the context of the
statute mostly is what I mean, then you should
just ask yourself whether you're appropriately
looking at the entire statute. JOHN MANNING: But Congress
does do nutty things sometimes. Sometimes you guys
have to enforce-- ELENA KAGAN: I mean, Milner
is a good example of that. Now, the fact that
Congress did not have an exemption that
covers those ordinance maps-- I mean in Milner the
last page of that opinion basically says we think Congress
ought to have an exemption that covers things like
this, and basically said to Congress you might
want to think about that and pass something. So yes, absolutely. It's not like you
get some trump card. But it is that you should
refrain from just when you look at a word and you
say that obviously means x and then that x
defeats the entire function of the statute, you should
look a little bit harder. JOHN MANNING: It's a
gut check basically. ELENA KAGAN: Yeah, but it's just
a reminder that it's not just a word, it's a
statute as a whole and that you have to make
sense of a statute as a whole. JOHN MANNING: So
you said earlier that you think that there
are outliers on either side of the court and then there's
a sort of a large center that has a consensus on this. What do you think's
the big difference between, for example, the
way you practice textualism and the way Justice Scalia
practices textualism? Is there much of a
difference or is it-- ELENA KAGAN: Well, I guess
I would say two things, and one's sort of
easy to explain and then the other is
a little bit harder. I mean the one way in which
Justice Scalia I think is a bit of an outlier
now-- although, as I said, the court has moved so far in
Justice Scalia's direction. Sometimes I think
about Justice Scalia that he should just declare
victory every once in a while rather than like
obsess over these-- JOHN MANNING: I sometimes
think that also, yes. ELENA KAGAN: --obsess
over these little things that people aren't
doing exactly the way he wants them to be done. But one of those
little things is that Justice Scalia really
never uses legislative history and really has an allergy
to legislative history of any kind in any context. JOHN MANNING: You know he
literally has an allergy? No, just kidding. ELENA KAGAN: And so
people will do things, like they'll write footnotes
or they'll write paragraphs about legislative
history and they'll put it in the following phrase. For those who care about such
things and then they'll go on. And that's so that Justice
Scalia can join the opinion as a whole because
they'll just say, I don't care about those things. So it's not committing me to
anything, or he'll sometimes-- JOHN MANNING: Sometimes he
still needs to drop a footnote. ELENA KAGAN: He does. Sometimes he will ask you to
put something in a footnote and then he won't
join the footnote or something like that. [LAUGHTER] Now, this difference
can be exaggerated because like I'm not such a fan
of legislative history myself honestly. And I mean we can talk
about that if you want. JOHN MANNING: Yes, I'm all set. ELENA KAGAN: But definitely I've
written opinions that use it for one or another purpose. JOHN MANNING: Can
you give an opinion in which it was dispositive? ELENA KAGAN: Yeah. So I think mostly it's not. I think mostly the way
people use it now-- and Justice Scalia
has a point on this. He says like why bother
using it that way? Mostly the way people use it
now is to confirm everything that they do on other
grounds, is to say here's what the text says, and here's
what the structure says, and here's how that fits
with the overall design and purpose of the statute. And oh, by the way, we found
this thing in the Senate report that tells us that everything
we just did was right. And I think that there
is a kind of like, well, do you need that paragraph? Probably not. It's like gilding the lily. Is that the expression? Or I think-- JOHN MANNING: It's
painting the lily actually. ELENA KAGAN: Is that right? So I wrote pretty
textualist dissent last year where I get to legislative
history and I said-- I forget exactly the phrase. It's like icing on the cake
already frosted I think. And I think that
that's mostly what people's treatment of
legislative history is now at the court. So this is one where I think
like, OK, so basically we're all doing the same thing and
Justice Scalia just hasn't like said, by the way, I won. JOHN MANNING: So why
do you think that is? So there are a bunch of
arguments against using legislative history. So when we went to law school-- I'll just read a
quote from an opinion called Overton Park which is
a famous administrative law opinion. And this was from
Overton Park, and it says "the legislative
history is ambiguous. Because of this
ambiguity it is clear that we must look primarily
to the statutes themselves to find legislative intents." ELENA KAGAN: That's
such a great quote because it expresses exactly
this thing that I was trying to get at when I was
talking about reading all these FOIA opinions, that
that's how the opinions read, which it's like god, we can't
make a sense out of this story. The legislative history
is all over the place. Guess we'll have to
look at the text. And that's just not the way
anybody does anything anymore. I mean, I do think that
legislative history-- you said is it ever dispositive? I mean I think it
can theoretically be. I think it was also
in Milner that I have a line someplace
where the government had some legislative
history arguments and I think I say
something like-- and those two were the
legislative history was kind of all over the place,
as legislative history very frequently is. It's like you have
hundreds of people trying to talk about
something, you end up getting lots of
conflicting signals. And I have this line
that says basically an unclear legislative history
can't trump a clear statute. That's perverse. JOHN MANNING: So
I hope you won't mind saying it's one of
my favorite opinions, and I actually have
the line right here. "Those of us who make use
of legislative history, believe that clear evidence
and congressional-- ELENA KAGAN: That was
probably put in so that Justice Scalia
could join the opinion. JOHN MANNING: And he did. --we have clear evidence
of congressional intent may illuminate ambiguous text. We will not take
the opposite tack of allowing ambiguous
legislative history to muddy clear statutory language." And you think that's the
way the rest of the court feels about it? ELENA KAGAN: Yes. I mean I think that eight
people joined for that opinion and I think actually
Justice Breyer would join that statement
too in a different context. So I think that that is the way. I mean, there is the flip side
that occasionally you see-- and maybe I can't figure
out exactly when you see it, but at least as a
theoretical matter I think that there
is the opposite. Suppose that you
have a tax that's quite uncertain
that's quite ambiguous and you use all
your textual methods of trying to figure
out the ambiguity and you just still can't do it. And suppose that you
had legislative history of a high quality-- let's say it's like a Senate
committee report rather than some floor statement or
something-- of a high quality that is actually remarkably
clear-- which occasionally you will find. I mean, occasionally-- that sort
of addresses the exact question before you and says this is
how we think it will work. All right? Then I see absolutely
no problem. And I guess this is the
difference between myself and-- I see absolutely no problem. I can't say it's happened to
me in the last five years. JOHN MANNING: Which is
interesting in itself. ELENA KAGAN: Yeah. But I see absolutely no problem
in saying OK, well look, the text is mysterious
and they seem to have addressed exactly this
issue in the Senate report. So yes, go with that. JOHN MANNING: And do you
feel that the court has moved in the direction that
you've just described based on a kind of a
pragmatic conclusion that the legislative
history is unreliable? Is it on the sort of formal
concern that it's not enacted? What's really behind it? Because there's been a recent
survey by professors Gluck and Breastman published in two
volumes of the Stanford Law Review and they go around,
they ask a bunch of staffers about the way that
Congress works, and the staffers came back
and said, you know what? Legislators are much
more likely to read committee reports than they
are the statutory text. And certainly the
staffers who advise them are also more likely
to read the committee reports than the statutory
text, which is often as we know really hard to read. So why doesn't that
kind of undo a lot of the critique of
legislative history that got us to this point? ELENA KAGAN: So I think
a couple of things. I mean, the first is
that legislative history, the way it used to be
practiced at least-- and I think part of
the resistance to it arose because it was practiced
in a pretty haphazard way. So it wasn't just the
principal committee reports, which actually are
written by the staff that are most involved in the bill
and are the statement of what supposedly they're thinking. But people used to use
legislative history, like lots of different
floor statements from individual
legislators, lots of really complicated stories
about drafting history, once the bill read like this,
and then there was an amendment and then it read like that. And sort of trying
to figure out how, if you looked at the
whole story of how the legislation got
enacted, you could sort of make sense of that. I think that they were trying
to do this rather than that when they rejected that amendment
or something like that. So a lot of it was
very speculative. A lot of it was, so we now
know what one guy thinks. What does that have
to do with anything? And I think that that kind
of legislative history it's not an much to
be said for that. JOHN MANNING: I agree. ELENA KAGAN: OK. I mean I think that you
raise a good question about the committee
reports, really the main documents
because that is I think it's an executive
summary of the legislation and it is what a
lot of people read. And for that reason
I think it ought to be given greater weight. And those are the
kinds of things that I say when there is
ambiguity, yeah, go read them. But I think even there
you said it was formal. And I guess it's formal, but
it's not what Congress passed. They wouldn't pass
a committee report. They can go pass a
committee report. They can incorporate a committee
report into their legislation if they want to. They didn't do that. We're looking at a law. Again, I think it has to do with
what the proper role of a judge is, and the proper
role of a judge is to try to give effect
to what Congress enacted. And maybe we could have a
different governmental system that gave us a different job,
but that's not the system that we have. And so can you use
those things to-- I mean we specialize in all the
perplexities and complexities and ambiguities that
come from trying to make sense of these laws. And I guess I am a
believer that you should use whatever tools are at hand. I'm also a believer
in sort of ordering those tools in certain ways. But that's the enterprise. The enterprise is not to like
go with the committee report because that's the thing
that people read really. JOHN MANNING: Thank you. So could I just ask you a
question about the text now? ELENA KAGAN: The what? JOHN MANNING: The text. ELENA KAGAN: The text. I thought we've been
talking about the text. JOHN MANNING: So this is a
kind of a special question about the text because one
of the things that you all do when you're
reading the text is you use canons of construction. Now, when you and I were in law
school I think it's fair to say that if anybody had used the
words expressio unius, [LATIN],, [LATIN]. I don't know if I'm pronouncing
any of those correctly-- in class, we would have
been mocked certainly by our classmates, maybe
even by the professor. I mean, it was just
not never raised. ELENA KAGAN: Now
Justice Scalia mocks me for not pronouncing them right. JOHN MANNING: Well,
he mocks me too. Now the court uses
them all the time and we have a whole segment
of legislation and regulation about the canons. Now, Karl Llewellyn said-- ELENA KAGAN: He has an amazing
part of Justice Scalia's most recent book. Goes through all the different
canons and it's fantastic. It's a compendium of them all. It's very helpful. Now they just go to Justice
Scalia's book to check out which canon applies. JOHN MANNING: So there
are lots of them, right? ELENA KAGAN: There are. JOHN MANNING: So that's
what Karl Llewellyn said. There's so many of them
that if you find one, you can find the opposite one. And so are they really useful? I mean your court uses a
lot of Latin phrases now, and do those canons really
help you decide cases? Do they help you figure out
the meaning of the text? ELENA KAGAN: So a bunch of
different things, and not all the same of course. Some of them have more
weight than others of them. So the fact that you
can list 72 of them and see how some
of them sometimes conflict with each other-- but some of them actually
do have a greater weight. They're things that the court
uses over and over again. So I wouldn't put them
all on the same plane. I guess the way I think of it-- I don't know all
the Latin phrases. I think of them
usually as guides to reading language sensibly. And mostly I think rather than
go and memorize 50 cannons, it's helpful to have an
intuitive feel for how language works and how the
people who write things think that language works,
and that the canons are often just ways of formalizing
those intuitions, those correct intuitions
about how people use language. So they can be very
helpful as that, as reminders of what
it's sensible to think that the drafters
meant to convey because the drafters
use language in a certain common way. JOHN MANNING: So
if a statute says we may start collecting
social security at age 65, we don't need a
cannon to say we can't start collecting it at 64. But it's always nice to
cite something in Latin to make it seem
more authoritative. ELENA KAGAN: Yeah. I mean I think that they
actually play a little bit more of a role than that. I mean we had a case last week. I'll try to do this without
at all giving anything away about anything I
think or anybody else thinks about the case. And it was actually sort of this
fascinating sort of Llewellyn type moment, because the
way the case came up to us, it was a very fine opinion by
Judge Katzman on the Second Circuit who now has a book out
about statutory interpretation. JOHN MANNING: Very
good one, yeah. ELENA KAGAN: And the parties
largely agreed with this, that it was two dueling canons. It was the dueling canons case. It was a phrase that I'm not
going to be able to remember, but basically there was
sort of three nouns followed by a modifying phrase,
and the question was whether the modifying
phrase referred only to the last of the
three noun phrases or whether it referred
to all three of them, and there's one
canon that says it refers to the last antecedent. I mean here's an example
of this, which is actually made a little bit
easier by the fact that astonishingly there is a
comma in here that tells you what to do. Well, let me save
this for a second. So there's one canon that
says the modifier just refers to the last antecedent. But there's another that says
if, let's say the three noun phrases, are enough
alike that they're kind of just a series of
things and they're equivalently modified by the thing
that comes after, then the modifier
actually refers not just to the last
antecedent, but to all of them. So here's an example
of that, which is if I say you can't be
deprived of life, liberty, or property without
due process of law, does the without due process
of law refer only to property or does it refer to
life or liberty too? So I think that was called
a series modifier rule. So it was the series modifier
rule versus the last antecedent rule. And that's sort of how
the case was argued to us. And both of those
things are things about how we commonly
use language, and sometimes rules
about how we commonly use language conflict
with each other and then you have to make
the best sense you can of it. And I won't give
the answer away. JOHN MANNING: So
it's about judgment-- ELENA KAGAN: It's
about judgment. JOHN MANNING: --and we
make these judgments all-- ELENA KAGAN: Right. It's about good judgment
as to the use of language. JOHN MANNING: So in some
sense we don't need canons and in another sense we can't
decode language without them. There are certain practices
and conventions that we use to understand language,
but they don't-- ELENA KAGAN: I think they could
decode language without them, it's just that they give us-- they're reminders. By naming things
that we do when we try to make sense of
language, it probably encourages us to think
about the right things as we go about that process. JOHN MANNING: So may I ask
you about an opinion of yours in which a canon
featured prominently? So it's the Yates decision. It involved the
venerable canon [LATIN],, which is the canon that says
when you have a list followed by a catch all you read the
catch all in light of the list. And so in that case,
the question was this. Is a fish a tangible object? And the Supreme Court
of the United States held that a fish is
not a tangible object because the words
tangible object appeared in a list that started
with records, documents, and other tangible objects. So it's the end of a list
that had records and documents and they said, well,
it's got to be something like what preceded
it in the list. You dissented in
for four justices, a very close case concluded
a fish is a tangible object. ELENA KAGAN: Shocking
proposition, isn't it? JOHN MANNING: Well, have
you been to the dining hall? Anyway, so it may-- ELENA KAGAN: I take that
as a slight, Dean Minow. JOHN MANNING: So how do you
divide on that question? ELENA KAGAN: Yeah. So the first thing I'll say
is if I live to the age of 150 I will never understand how the
court reached the conclusion it did in that case. Usually I'm really very good
at saying, on the other hand I really understand why
people who disagreed with me disagreed with me and they
really have some good points. And I think it's actually
one of my strong points that I'm able to see
what the world looks like from a different
point of view, but honestly I just don't
see it in this case. So we start. So the phrase and
the statute was-- what is it? Records, documents-- JOHN MANNING: Records,
documents, and tangible. ELENA KAGAN: --or tangible
things or tangible objects? JOHN MANNING:
Tangible objects, yes. ELENA KAGAN: Some of the
other similar phrases were tangible things. Record document or
tangible object. The whole thing was about
evidence destruction and the question-- and it came
up in a funny ha ha kind of way because there was a fisherman
and there were rules about you have to throw
fish of a certain size back into the water. And his people
came onto his boat and it turns out that
he had been keeping much too small fish and the fish
were the evidence in that case. So it's unusual. But the fish indeed
were the evidence, and this was an evidence
tampering statute. That's what this
statute was all about. Now, is a fish a
tangible object? Well, obviously in
a dictionary sense, even the majority
agreed with this the answer was,
well yes, of course, a fish is a tangible object. And then my view
is that even if you expand your scope
of vision, which I think it's important
to do-- one of the things I say in that opinion
is you don't stop there. Everybody agrees
that you don't stop with just a word or a phrase. You can look more broadly. You have to look more broadly. It turns out that like there
are 1,000 evidence tampering statutes that use
the phrase record document or tangible
object and they always use it to mean like
any evidence, anything. It could be if you're
a murderer and you burn the diary in which you
confessed to the crime, that's like a record or a document. But if you hide the
body, that's just as much included in a whole
world of these evidence tampering statutes. And there was a whole story of
how these evidence tampering statutes came to be
this way, that there was a model penal
code provision which made it quite clear
that it was referring to the whole world of evidence
and not just written evidence and that model penal code
provision comes into lots of state evidence laws. And it's almost the
exact same phrase was used in the federal
statute and everybody agreed that it referred to
non-documentary evidence as well as to
documentary evidence. So this was like the one place
in the entire world of evidence tampering statutes
where the court insisted on treating this
phrase a different way, and I still don't
understand why. But they did say like record,
document, tangible object, you have to interpret tangible
object in light of record and document, which it
characterized as things that store information. So it could be written
or it could be virtual, but it had to be things
that preserve information. And I guess I looked
at it and I said, well even if you thought
that this canon could trump the plain language, the context,
the structure, everything, even if you thought
that this canon could trump that, you have to
use the canon sensibly too. It's like the cannon says you
need a common denominator. But what is that
common denominator? Is the common denominator things
that preserve information? Or in the context of an
evidence tampering statute is the common denominator
things that provide information to an investigator,
things that say something to an investigator
about what the crime is? So I don't know. I still don't get it. JOHN MANNING: So
one way of putting all of this-- and I think
it covers everything from the first question
to this last one is that you're textualist,
you care about the text, you feel constrained
by the text, you feel it that's how
judges ought to behave, and that we also have to
realize that textualism is not about looking in any way at
the four corners of a document. It's holistic. You take a lot of different
things into account. And in this case, the history
of the way similar statutes had been interpreted that
informs, perhaps, the enactment of this statute-- that you look at the
context of other words. You look at some legislative
history, perhaps, if it's ambiguous. But there are lots
of things that inform the meaning of the
words and that the words are ultimately the constraint. But they're adopted in a
rich legal environment. Would you say that's a fair
characterization of your-- ELENA KAGAN: I'm going to
carry you around with me. That sounded pretty good to me. JOHN MANNING: Done. OK, so-- ELENA KAGAN: I would
want to look at it exactly to see if I
agreed with all of that. I mean, I think what I'm trying
to do is to interpret a text-- that there is that
appropriate constraint-- that I'm not writing it. I'm not making it up. Congress has done that. I'm just trying to interpret it. And I think that there
is an order of things-- that you look at the text. You look at the context. You look at the structure. If things are still
unclear, you start thinking about how canons might apply. If things are still
unclear after that, you might go to particularly
useful legislative history so that there's a kind of
ordering process that gives discipline to the inquiry. You stop when you
think that you've resolved the ambiguity--
whatever ambiguity is there-- as best you can. JOHN MANNING: Thank
you, Justice Kagan. So I think we have
about 10 minutes. Would it be OK if we open
the floor for some questions from our students or colleagues? Professor Elhauge? AUDIENCE: Hi. So you've emphasized
the importance of starting with
the text and staying within the [INAUDIBLE] role. But, sometimes, no matter how
sophisticated your textualism, you get ambiguous results. And I think, broadly
speaking, there's two conceptions of judicial
role in those cases. There is what is called the
[INAUDIBLE] model, which basically says, well,
if Congress wanted to say something that was
unclear by exactly what it means, judges, who
act like [INAUDIBLE],, could read it sensibly into
the rest of the legal corpus. And then the other model
is the [INAUDIBLE] model. It says, well, in those
cases, even if it's unclear what Congress meant, we try
to recreate what they're most likely to have wanted. [INAUDIBLE] Which
of those do you see as the judicial role
in textual ambiguity cases, or what's a third
version of judicial role? ELENA KAGAN: Well,
I guess, I'm going to resist the premise of
the question a little bit, which is to say
that one just finds oneself stuck at
a certain point, and it's just a hopeless muddle. And you have to pick something. I think that,
actually, the world doesn't much work like that-- that I think if you
use these various tools of interpretation--
mostly, you get to one answer--
that seems to me-- better than another answer. There was another case that
I wrote a few years ago, which had to do with gun laws-- a case called Abramski. What the gun laws
do is they basically say that when you walk
into a gun dealer, the gun dealer has to
check who you are and has to run your name through
a system in order to make sure that
you're not a felon. And you know the basic
idea of these gun laws. So the way this
statute was written, it kept on referring to
persons and transferees when it talked about who
the gun dealer was supposed to run through the system
in order to make sure that they weren't a felon. And the question
comes up, well, how about if the guy at the
counter is a straw purchaser-- meaning that there has
been an arrangement made where he is just
going to give the gun over to somebody else. So who's the buyer, or
who's the transferee, or who's the person
in that context? Is it the guy at the counter,
or is it the person who's actually going to get the gun? And this is like a
fundamentally unclear thing about the statute. And this also was a 5-4 opinion. And it was a 5-4
opinion because you have to say that they
wrote the statute, and it was fundamentally
uncertain as to who the transferee was. And, so, Justice Scalia said,
what are you talking about? The transferee, or the person,
is the person at the counter. So as long as the person at
the counter gives his damn, you just run that name through
the system and that's what-- But on the other hand, that
seemed actually not right to me, clearly, as a
matter of the language-- that maybe the transferee
was the guy who was actually going to get the thing
and who was always known to get the thing. I mean, these straw
purchases would stand there at the counter, and
they would hand over some cash. And then just hand it
right over to the guy who was going to come away. So there's a fundamental
ambiguity in the statute. Now, I guess my view
was, well, then you kept thinking about the statute. And you kept thinking about what
the statute was designed to do. And the way that
opinion sort of reads is I go through all the
different mechanisms that the statute
uses, and I talk about what the point of
all of those mechanisms are and basically say the
point of all those mechanisms is to make sure that the guy
who's going to, in the end, come away with the gun. Is the guy who we're
checking is a felon or not? And that, to me, was a
pretty common sensical way of resolving the
ambiguity in these words. So I don't know which
model that exactly is. I guess what I would say
is there are ambiguities in language that are just
going to exist in the statute and that one of
the things you do is you think about the design
of the statute as a whole and try to make those
ambiguities come out in a way that makes sense in
light of the entire statute and its design. JOHN MANNING: Other questions? I'm going to call on the dean. ELENA KAGAN: Don't students
get to ask anything? JOHN MANNING: If they
raised their hands-- [INAUDIBLE] AUDIENCE: I'll be quick. These are a
constitutional dimension to this theory of
statutory interpretation, or is it just the lighting? ELENA KAGAN: Well, I guess
there is in the sense of-- I mean, this is what Professor
Manning was talking about-- about what a judge's
proper role is. Where does that come from? It, in the end, comes from the
difference between Article I and Article III of
the Constitution. And it suggests why congressmen
do one thing and judges do another different thing and that
we should keep that in mind. I mean, look, I guess, there's
plenty of important stuff that judges do, and I don't
think we should necessarily-- we shouldn't take over the
roles of other branches of government. And the Constitution
tells us not to. And we're not masters
of the universe. We're not emperors. We're not kings, and
we're not Congress. And, so, is that a
constitutional proposition? Yes. JOHN MANNING: Any students? How about here in the third row? AUDIENCE: I was wondering if
[INAUDIBLE] when the question that you're answering is
whether Congress has spoken to the precise question
at issue, not actually what the best reading
of the statute is-- if you use the same
typology, and, if so, if you think there's
more disagreement among your colleagues if your
typology is the right one to use. ELENA KAGAN: When we're
trying to figure out whether there is ambiguity-- yeah, I mean, it's
sort of interesting. A while ago, Professor
Manning asked me what were some differences that
I have with Justice Scalia. And we talked a little bit
about legislative history differences. I think that there's
another difference, which has to do with the
quickness with which we find ambiguity. In other words, some
people, I think, very rarely say this
just is ambiguous. And I think some
people more frequently say, yes, this is ambiguous. And you often see that in
a Chevron-type context. You also see it-- this was part of my dispute
with Justice Scalia in this case that I just talked about
with Professor Elhauge. Because what Justice Scalia
said was like the buyer only means one thing,
or the transferee only means one thing. It means the guy at the counter. And I said, well, why
does the transferee only mean the guy at the
counter as opposed to the guy who
actually has paid for and is going to come
away with the gun? And, so, where I saw ambiguity,
Justice Scalia saw clarity. And once he saw clarity
in what that word meant, he thought that the game was up. And I thought, actually,
the game has just started. And I do think that there is
a difference among justices as to that question-- that some people think things
are clear in circumstances in which other people
think there is still a lot of question marks. And I don't know why
that is exactly-- whether that's almost a
question of personality. JOHN MANNING: He is a
confident fellow, yes. ELENA KAGAN: So, I mean,
that's one possibility-- that there is some sort of
temperamental differences here that have nothing to do with
anything other than that-- or what else might
it have to do with-- the ease with which people
find, yes, this is clear. JOHN MANNING: I'm not sure. I do think it may
be temperament. I think statutes
are complicated. And I'm actually a little
bit surprised at the number of times that your court
concludes that a case that has come before it-- largely on
the basis of splits in opinion in the lower courts-- how often your court will
conclude that a statute that has come to it is clear. ELENA KAGAN: Yeah. Well, I guess, I would say a
couple of things about that. You can tell this is a great
question because I'm not quite sure how to answer it. But one thing is that sometimes
you really do look at a case and say, I don't
really understand how all these courts split on this. It actually does seem
pretty clear to me. And those are the kinds of cases
that often lead to these 9-0 decisions-- even though
there has been a 6-4 circuit split or something. But other times, I mean, we say
something is clear in the end. But it's only after having
gone through a very extensive process of using a lot
of different tools, of looking at a lot
of different things, of starting with dictionaries
but then really thinking very widely about
structure and context-- about using canons,
about looking to legislative
history-- and then, finally, when you do all
of that, it's like, OK, you arrive at an answer. That doesn't mean
that the getting there has necessarily been easy. JOHN MANNING: I think
we're out of time. And I just want to
say thank you, Justice Kagan, for coming here and
giving us an opportunity to have a sort of inside
view into the way you and your colleagues
think about statutes. Thank you for your candor and
your wisdom and your clarity, and we're just delighted
to have you back. And thank you for being the
Scalia lecture this year. ELENA KAGAN: Which
is really fun. Thank you. [APPLAUSE]
