Topic: Congressional Intent
Senator: Coburn
Date: SEPTEMBER 14, 2005
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COBURN: The other thing: Yesterday, you had an exchange with Senator Feingold on a case, and I think it was the Gonzaga, and you talked about congressional intent.
And I'd like for you for a moment to spend a minute giving us your opinion. And you may refuse to do so if you care to; that would be your privilege.
But one of my observations is that, oftentimes, we don't do a very good job with the laws that we write, because we're not very clear. Sometimes we're lazy. Sometimes we are politically expedient.
But, oftentimes, the very problems that you as a court make controversial decisions over are because we've not done a good job.
And I'd just like your thoughts as to: If you were to critique things that we could do better to make your job easier and clearer, what would you have to say to that?
ROBERT: Well, sitting where I am, I'm not terribly inclined to be critical of...
(LAUGHTER)
... the Congress and wouldn't be, in any event.
But a lot of what judges spend their time doing -- not always in the momentous constitutional cases that we've been talking about, but sometimes in very mundane cases -- is the effort to discern congressional intent, trying to figure out what Congress meant when it used specific words that were passed by both houses and signed by the president into law.
Now, some of that is entirely unavoidable.
ROBERTS: The complexity of human endeavor is such that situations are going to arise that are not clearly answered by even the most specific language. And that's to be expected, and judges have to address those situations.
But as you suggest yourself in your question, there are situations where sometimes Congress punts the issue to the courts. They can't come to an agreement about how a particular provision should be applied, and so folks who want it to go one way and folks who want it to go the other way just sort of leave it ambiguous or leave it out and take their chances in court. And obviously that's a different situation.
I think all judges would tell you that to the extent Congress can address the issues and resolve the issues that are the policy questions entrusted to them, it makes it a lot easier for the courts to decide the cases that do come up, because then it's just a question of looking at the facts and the law is clear and you apply the facts to the law. If the law is unclear, that makes it that much more difficult.
You know, as I said, obviously a lot of these situations are unavoidable, but there are certainly -- and the Supreme Court has addressed many of these -- the issue of implied rights of action in the past. And they were getting case after case after case. And they finally adopted an approach in the early 1980's that said, look, we're not going to imply rights of action anymore. Congress, if you want somebody to have a right of action, just say so.
But this is not a good thing for the courts to be doing, deciding whether a particular right of action should be implied or not. And after the court developed that jurisprudence in the early 1980's, you know, the hope was -- and I think it has been realized to a large extent -- that there would be more addressing of that question in Congress, which is where it should be addressed.
COBURN: And you would agree, we could do a better job.
ROBERTS: Well, I'm sure everyone's doing as good a job as they can.
COBURN: That's the first answer I worry about that you've given the whole testimony.
(LAUGHTER)
COBURN: Let me go to another area.
(LAUGHTER)
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