Anti-Disruption Statutory Construction

21 Pages Posted: 22 Sep 2016 Last revised: 18 Jan 2017

See all articles by Jonathan H. Adler

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: September 21, 2016

Abstract

During his first ten years on the Supreme Court, Chief Justice John Roberts has adopted a pragmatic approach to statutory interpretation that appears to place a higher priority on avoiding disruptive consequences than on any particular interpretive methodology. Prepared for the symposium, “Ten Years the Chief: Examining a Decade of John Roberts on the Supreme Court,” at the Benjamin N. Cardozo School of Law, this brief essay argues that the Chief Justice’s approach to statutory interpretation exhibits a “Burkean minimalism” that seeks to reduce seismic effect of the Court’s decisions. In particular, the Chief Justice is drawn toward statutory interpretations that avoid constitutional questions and preserve legislative enactments against constitutional challenge. Avoiding disruption is not an unyielding imperative, as the Chief Justice is sometimes willing to join broad judgments with significant effects. Nonetheless, avoiding disruption appears to be a priority for the Chief Justice when deciding cases, and interpreting statutes in particular.

Keywords: Chief Justice John Roberts, Statutory Interpretation, Burkean minimalism, constitutional avoidence

JEL Classification: K49

Suggested Citation

Adler, Jonathan H., Anti-Disruption Statutory Construction (September 21, 2016). 38 Cardozo Law Review 509 (2016); Case Legal Studies Research Paper No. 2016-34. Available at SSRN: https://ssrn.com/abstract=2841822

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

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