The Embattled Constitution

11. Statutes

>> 297 11 Statutes Robert A. Katzmann Introduction I owe much to James Madison, that diminutive giant, one of the founding architects of our constitutional structure. In my pre-bench, academic days, much of my work focused on the challenges of governance, on the ways that our institutions operate, and on the obstacles to and steps toward the more effective functioning of government. My research and writing concentrated on a range of subjects having to do with governance, including the determinants of agency discretion,1 and how the institutions of national government —the legislative, executive, and judicial branches—affect outcomes over time.2 I viewed lawmaking as a continuum of institutional processes, which interact with one another in complex and subtle ways. My appreciation for interbranch inquiry was heightened when my friend, collaborator, and mentor, Judge Frank Coffin, became chair of the Committee on the Judicial Branch of the Judicial Conference of the United States (a statutory group of twenty-six federal judges, as well as the Chief Justice, that makes national administrative policy for the federal courts). Judge Coffin, who represented Maine in the House of Representatives, called for a systematic examination of the full range of judicial-legislative relations—past, present, and future. Judge Coffin asked that I assist in devising and implementing the Committee’s research agenda. In time, we and some colleagues created the Governance Institute as the vehicle for our work.3 The first product of that enterprise was Judges and Legislators: Toward Institutional Comity,4 a symposium that brought together scholars, judges, legislators, and others This lecture was delivered on October 18, 2011, and appeared in 87 N.Y.U. L. Rev. 637 (2012). 298 > 299 the language “convicted in any court” mean any prior conviction in any court anywhere in the world, or does it only apply to convictions in courts of the United States?14 How should I, as a judge, interpret such statutes? Should the judge confine herself to the text? Should the judge, in seeking to make sense of the ambiguity or vagueness, go behind the text of the statute to legislative materials, and if so, which ones? Should the judge seek to ascertain Congress’s purposes and intentions? These questions of statutory construction are of fundamental importance because the methodology of interpretation can affect the outcome in a case and thus whether the law has been construed consistently with Congress’s meaning—to the degree that it can be divined. Not only have these questions sparked considerable discussion within the federal judiciary itself, but also congressional hearings have been devoted to the subject.15 Senators ask judicial nominees for their views on how they would construe statutes,16 and law journals are filled with learned articles on statutory construction.17 When Congress reverses a statutory decision of the Supreme Court, the mainstream media may cover it. That was the case, for example, when Congress enacted the Lily Ledbetter Fair Pay Act of 2009,18 which states that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new discriminatory paycheck.19 Then Congress heeded Justice Ruth Bader Ginsburg’s dissent in Ledbetter v. Goodyear Tire & Rubber Co.20 and objections from many civil rights groups to the Supreme Court’s ruling that pay discrimination claims under Title VII of the Civil Rights Act of 196421 are time-barred if the pay-setting decision was made outside of the 180-day statute of limitations period.22 Judicial interpretation of statutes has been part of this nation’s constitutional experience from early days. In a Madison Lecture on statutory construction, I would be remiss in failing to note the famous case bearing Madison’s name, Marbury v. Madison,23 in which Chief Justice John Marshall interpreted section 13 of the 1789 Judiciary Act to be unconstitutional . He thus avoided the dilemma of ordering Madison to deliver William Marbury his judicial commission (which President Jefferson would have overridden) or refusing to issue the writ—either way exposing the Court’s limited power. Attention to statutes is not surprising. Statutes affect all manner of life, including the most pressing public policy issues of the day. They are the basis of much governmental activity—“the beginnings,” in Charles Jones’s words, “of life through law.”24 The numbers and kinds of statutes 300 > 301 actually functions, how Congress signals its meaning, and what Congress expects of those interpreting its laws. Although in a formal sense the legislative...