Bench Memos

Law & the Courts

Judge Kethledge — Integrity & Originalism

With Justice Kennedy’s retirement, President Trump has a unique opportunity to further solidify how the Supreme Court interprets the Constitution and federal statutes. Ideally he will select the judge on his list who best fits Justice Gorsuch’s mold — Raymond M. Kethledge.

President Trump was elected on the promise that he would nominate strong Supreme Court Justices. Exit polling showed that the Supreme Court was the most important issue to a full quarter of Trump voters, and an important issue to nearly all the rest.

So far, they have been vindicated. Justice Gorsuch has proven himself an apt replacement for Justice Scalia. He is already an anchor in the group of justices that bases its decisions on timeless principles rather than current passions. The president can now bolster that nascent majority.

To do so, he should nominate a jurist like Justice Gorsuch, which means the nominee would be both an originalist and a textualist. These beliefs are integral to the rule of law. And they are fundamental to protecting religious and other constitutional liberties — and to cabining the appropriate role of the administrative state.

I have known Judge Kethledge for almost 25 years, since we worked together on Capitol Hill in the mid-1990s. Ray was then, and has been since, a mentor — in every sense of the word. He helped me follow his path to the University of Michigan Law School, and he was the key recommender for my own judicial clerkships. I have sought Judge Kethledge’s advice at every stage of my career, and I am fortunate to be among the many to whom he has generously offered (though never dictated) his insight and counsel.

Even two decades ago, it was clear that Judge Kethledge venerated the Judiciary — and its proper, limited status within our constitutional design — and that he wanted enforcing that design to be his life’s work. From those core premises — modesty, integrity, respect — it naturally follows that Judge Kethledge would be an originalist and textualist. As he explained in a recent law review article, a judge’s task is to unearth “the meaning that the citizens bound by the law would have ascribed to it at the time it was approved.” Accordingly, “the judge who succeeds in that task thereby does her part to maintain our constitutional separation of powers.”

Judge Kethledge has spent the last ten years turning these beliefs into principles — and putting these principles into action in his service on the Sixth Circuit Court of Appeals. As an originalist, “faithful adherence to the Constitution and its Amendments requires us to examine their terms as they were commonly understood when the text was adopted and ratified, rather than applying meaning derived years later that may weaken constitutional rights.” And when Judge Kethledge interprets a statute, he uses textualist tools for unearthing its meaning — such as the dictionary—as well as his own preternaturally good ear. As he says, “we have definitions for every word in the language, and rules of grammar, and, perhaps most important, our own ordinary usage of the language.”

Equally important is what Judge Kethledge does not do: He rejects the interpretive ruses that some judges use to enact their own policy preferences into law — and he does so in unequivocal terms. To cite only a few examples:

  • The improper purpose of legislative history “is often not to explain the statutory text, but to advocate — to convince the courts, or perhaps to allow them, to read into the text certain values that lacked the votes to be included there.” Judge Kethledge knows this firsthand; when working for the Senate, watching others draft legislative history was “rather like being a teenager at home while your parents are away for the weekend: there was no supervision.”
  • Judge Kethledge dismisses requests to apply legislative purpose from general principles drawn from scattered laws, rather than the words of the statute at issue as “more impressionistic than legal.” To him, “statutes are not artistic palettes, from which the court can daub different colors until it obtains a desired effect.” Nor is a judge’s role “to fashion a sort of judicial string theory, under which we develop universal principles that harmonize different statutes with different language. Our task instead is to apply the words of the statute at hand.”
  • And Judge Kethledge rejects arguments based solely on policy: “Neither policy concerns, nor some general sense of the statute’s overriding purpose, nor the spirit of the age, provides us with any lawful basis to do what” Congress could have done “with a few keystrokes”—yet did not. Judges are “confined to what the law says.”

Each tactic has the same end: to empower the judge to make a decision based on something other than what elected representatives voted upon. Thus, as cogently explained by Judge Kethledge, doing so would impermissibly arrogate to the Judiciary the responsibilities the Constitution assigns to the Legislature.

Finally, as the above passages demonstrate, Judge Kethledge is a gifted writer. His prose is candid and his metaphors are well-deployed. His opinions are self-evidently the product of a life of reading — and not only Strunk and White (his copy undoubtedly by now in tatters). Unsurprisingly the Wall Street Journal in 2014 dubbed one of Judge Kethledge’s decisions the “Opinion of the Year.” A dissenting colleague once claimed that Judge Kethledge’s majority opinion mistook where “the beaches of Normandy lie” in the case — to which Judge Kethledge replied that “where the dissent actually finds itself . . . is at Pas de Calais,” where the Allies had tried to trick the Germans into thinking the D-Day invasion would land.

Strong writing is not merely a bonus in a Supreme Court Justice. It is a necessity. Only a Justice with the ability — and the courage — to write persuasively can continue to prove the wisdom of originalism and textualism to future generations.

In sum, personally and professionally, not only Judge Kethledge’s intelligence, but also his decency and humility, have exemplified his life and career. We will be fortunate if he has the privilege to continue these pursuits as a justice of the Supreme Court.

Stephen E. Hessler is a partner practicing restructuring law in New York. He also teaches at the University of Pennsylvania Wharton and Law Schools. The views expressed herein are solely his own.

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