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Statutory Interpretation In The Roberts Court’s First Era: An Empirical and Doctrinal Analysis


Anita S. Krishnakumar


St. John's University - School of Law

September 7, 2010

Hastings Law Journal, Vol. 62, 2010

Abstract:     
Empirical studies of the Supreme Court’s statutory interpretation cases are few and far between. Those that do exist tend to focus on a sampling of cases over time, cases interpreting statutes in one area of the law, or on one specific aspect of the Court’s interpretive practice, such as its reliance on legislative history. This Article takes a different approach, examining all of the Roberts Court’s statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired.

The Article’s approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court’s and individual Justices’ rates of reliance on fourteen different tools of statutory construction, as well as (2) engages in doctrinal analysis of the Court’s statutory cases, highlighting discernable patterns in the individual Justices’ interpretive approaches. The Article makes two significant contributions to the field of statutory interpretation: First, it identifies an interpretive divide between the Justices on the Roberts Court over what I call “legal landscape coherence” versus “statute-specific coherence.” In brief, the legal landscape coherence Justices focus on the legal framework surrounding the statute at issue and seek the interpretation that fits most coherently into the existing legal structure; while the statute-specific coherence Justices focus on the individual statute at issue and preference the interpretation that creates an internally consistent and coherent policy across like situations and across time. The Article maps out the Justices’ theoretical divide in detail and shows how the divide translates into stark empirical differences in the Justices’ individual rates of reliance on particular interpretive canons and tools.

Second, prior empirical studies have shown that Supreme Court Justices frequently reference practical considerations when interpreting statutes. This Article breaks new ground by uncovering an important difference in the form of practical considerations to which the different Justices tend to give weight, pointing out that the landscape coherence Justices tend to focus on the administrability of the interpretation - e.g., its effect on judicial resources, the difficulty of implementing it, and the clarity and predictability of the rule created; while the statute-specific Justices focus on the constancy of the policy effected by the interpretation - e.g., whether it fosters a consistent application of the statute over time, the arbitrariness of the policy created, and the justness of the interpretation. The Article concludes with three case studies illustrating how the Roberts Court’s interpretive divide operates in practice.

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Date posted: November 13, 2009 ; Last revised: March 13, 2012

Suggested Citation

Krishnakumar, Anita S., Statutory Interpretation In The Roberts Court’s First Era: An Empirical and Doctrinal Analysis (September 7, 2010). Hastings Law Journal, Vol. 62, 2010. Available at SSRN: http://ssrn.com/abstract=1503442 or http://dx.doi.org/10.2139/ssrn.1503442

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Anita S. Krishnakumar (Contact Author)
St. John's University - School of Law ( email )
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