Anita S. Krishnakumar
Volume 62, Issue 2, 221-296
This Article examines 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, and (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 that seems to be doing significant work in the Roberts Court’s statutory cases—a divide that perhaps best can be described as one between “legal-landscape coherence” on the one hand, and “statute-specific coherence” on the other. “Legal-landscape coherence” refers to an interpretive approach that focuses on the legal framework surrounding the statute at issue and seeks the statutory construction that fits most coherently into the existing legal structure; while “statute-specific coherence” refers to an interpretive approach that focuses on the individual statute at issue and preferences the statutory construction 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.
This Article breaks new ground by uncovering an important difference in the form of practical considerations that different Justices tend to reference. Specifically, the Article demonstrates that the landscape-coherence Justices tend to focus on the administrability of an interpretation—that is, its effect on judicial resources, the difficulty of implementing it, and the clarity and predictability of the rule created; while the statute-specific Justices tend to focus on the constancy of the policy effected by an interpretation—for instance, 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 two case studies illustrating how the Roberts Court’s interpretive divide operates in practice and with a discussion about the theoretical implications of the divide.