Judge David Tatel’s new memoir, Vision: A Memoir of Blindness and Justice, recalls his remarkable legal career. In this episode, Judge Tatel joins Jeffrey Rosen to discuss his experience as a civil rights lawyer, landmark cases he presided over as a federal judge, the challenges his blindness posed, and how he overcame them.
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Cooper Smith, and Yara Daraiseh.
Participants
Judge David S. Tatel has served on the U.S. Court of Appeals for the D.C. Circuit since October 1994, assuming senior status in 2022. He previously served as the director of the Office for Civil Rights of the U.S. Department of Health, Education and Welfare during the Carter Administration. Judge Tatel co-chairs the National Academy of Sciences’ Committee on Science, Technology and Law; and is a member of the American Philosophical Society and the American Academy of Arts and Sciences.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Judge David S. Tatel, Vision: A Memoir of Blindness and Justice (2024)
Excerpt from Interview: David Tatel discusses the Chevron doctrine, its effectiveness in enabling agencies to fulfill their missions, and his concerns about the Supreme Court's decision to overrule Chevron.
David Tatel: Right. I suppose the one we really want to talk about is Chevron. It's on everybody's lips these days. In my 30 years on the court, I probably dealt with the Chevron principle more than any other. I mean, the DC Circuit hears huge numbers of administrative cases, challenges to administrative actions. And so Chevron was a big part of our lives. I found over the years, Jeff, that the structure Congress had created, that is, with administrative agents, Congress passes general legislation like the Clean Air Act or the Food and Drug Act. It passes general legislation focused on the health and safety of the American people and creates administrative agencies to enforce them. And the agencies are subject, of course, to judicial review. I found that Chevron, which, of course, required courts to defer to agency reasonable interpretations of statutes, but yet to invalidate agency action when it violated the clear language of the statute.
I thought that that principle, along with the other statutes we applied, the APA and the generic statutes, I thought the system did a good job of allowing federal agencies to do what they were charged with doing, namely use their expertise to pursue their mission, whether it was ensuring clean water or clean air or safe drugs or safe financial markets, whatever it was. They would use their expertise to issue and over the years revise regulations and standards to fulfill the statutory mission. I thought that Chevron did a good job over the years of allowing that flexibility to proceed, to move forward, free of judicial interference, but yet retained the authority of the court to rein in the agency when it exceeded the law. It worked for me. I thought it was pretty effective. And apparently, Congress did because, although Congress made a few adjustments over the years, it knew about Chevron and it passed more legislation knowing that the courts would apply to Chevron. It made a few adjustments, but it left that in place.
And I know most of the judges that I worked with were more or less satisfied with it. And one of the interesting things about Chevron also is that it was responsible for producing a great deal of unanimous court decisions because it wasn't unusual for the three of us to go back to conference and which judge to, say, if we were reviewing say a decision of say OSHA, a regulation of OSHA, one judge would say, you know, if I were looking at this de novo, I would throw this out, but I can't say it's an unreasonable interpretation of the statute. And so we would have a unanimous decision. Well, now the court has decided, this same court that has applied Chevron repeatedly, has now decided that Chevron violates the Administrative Procedures Act. First of all, I find that argument unpersuasive. Yes, the APA says courts are to determine what the law is, but under Chevron 2, we're only approving an agency action under Chevron 2 if we think it represents a reasonable interpretation of the law. We're not approving agency decisions that we think are unlawful. We think they're a reasonable interpretation of the law, and in many of these cases, in fact, most of them, the statutory language is ambiguous and there are gaps and it has to be interpreted and there's a range of legally acceptable interpretations. And so I don't see any conflict between Chevron and the APA.
Now, I think it's a good example of the court not respecting its precedent. It's the same thing as in Shelby County. Yes, precedents can be overruled, but the court has to have a powerful reason for doing it, and it has to have a rational explanation for doing so. And neither of those exist in the Supreme Court's decision overruling Chevron. The result of this, I think, is going to be chaos for quite a while. It's going to take a long time for the courts of appeals to figure out how Chevron 2 only came into play when the canons of statutory interpretation didn't give you an answer. So now, what do we replace that with? I think what's probably going to happen, first of all, you're going to have a lot more divided panel decisions because there's no deference. So the courts of appeals are going to split along ideological lines in many, many more cases. And I think what we'll see, this is only instinct, I think what we'll see is a tightening up on the rules of statutory interpretation.
I think we'll see more and more use of the so-called major questions doctrine, which says that if an agency action has a major effect on the nation's economy, or some other aspects of it, that the major questions doctrine was originally developed to say Congress would not have delegated that to the agency. I think you will now see it being used to say in cases that have a major impact on the economy, unless Congress speaks clearly, the agency can't do it at all. So we'll see that used a great deal in. And there are several justices who have expressed interest in the non-delegation doctrine. And I don't know whether that will be used in the next few years. I mentioned that fear in the book, that that could be where we're headed. But I think we're in for a huge amount of chaos and uncertainty as the courts and then ultimately the Supreme Court sort out what has just happened.
Excerpt from Interview: David Tatel reflects on hiding his visual disability as a teenager, the anxiety it caused, and the lack of blind role models, leading to his eventual acceptance and openness about his blindness later in life.
David Tatel: Well, when I was a teenager and diagnosed with RP, I already had a lot of trouble seeing at night, but I was 15 years old. I didn't tell anybody about it. I didn't want to be different. Everybody wants kids to be like their friends, right? And I was a little ashamed that there was something wrong with me. I didn't want to explain it to anybody. And so, I developed, I explain in the book all the various tools I developed to hide my declining eyesight. Some of them are funny. Some of them are sad. They were all anxiety producing. As I got older and went off to college and law school and began to practice law, a new factor came into play, which was, you know, would my visual disability affect my future employment? One of the things I focus on in the book is how important role models were to me. I mean, really important in my career. The great lawyers and judges who became my role models, but I didn't have any blind role models. There weren't any. And so as I look back at young David Tatel and try to understand what he did, and that's what writing this book did for me, Jeff. It wasn't just writing down my story. It required a great deal of thinking about why I did what I did and probing deeply into it.
It was really a personal revelation. But as I look back on David Tatel, I don't criticize him for hiding it. I think he was right that at that time in our country's history, employers knowing about a serious visual disability would have been a problem. But it soon got to a point where I couldn't hide it anymore. By the time I was in my mid-30s, I needed help moving around and I used an assistant. That was at the Lawyers' Committee at the time. I started using my secretary to read to me. I remember I said to her one day, she popped the letter down on my desk and I said, I think I need to have you read it to me. And then that's when I got a Braille tutor. And then, but even then, Jeff, I didn't want to talk about it. I mean you've known me a long time. You know, you were aware of my visual disability, I'm sure from the beginning as many of my friends were, but people understood it wasn't something I wanted to talk about and almost everybody respected that. Even when I got the cane when I was 35, which was a story in itself, so I'm now visibly a blind person. There's no hiding it anymore. It still wasn't something I talked about because I didn't want, when I was looking for opportunities, I didn't want in any way to get the job because I was blind.
I didn't, I wanted to be, when I went on to the DC Circuit, the President didn't mention blindness in his press release. Same thing when I became OCR director at HEW 20 years earlier. And that's the way I wanted it and looking back on that, I actually regret that because I think I missed an opportunity to provide the inspirational role model for younger people that I never had. In fact, that's what I hope this book will do. It's kind of why I wrote the book. But eventually, I became more comfortable with it. It's probably personal maturity, but writing this book forced me to deal with it in ways I never had and also finally biting the bullet and getting a guide dog. All of those things coalesced to make me think in ways about my blindness and my history that I never had. You move through life quickly. You don't often think about what you're doing. These couple of years of writing were quite extraordinary for me.
So, that plus the guide dog has kind of freed me from my constraints, and I'm now comfortable talking about it. I mean, as I said, you've known me for a long time. If you had asked me these questions, even five years ago, Jeff, I would have been uncomfortable answering.
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