Manual de Funciones

consequences that are likely to flow from adopting a particular interpretation. Within this subset of dueling opinions, one pattern or divide is prominent: in 61.3 percent of the cases, one opinion makes an “administrability” argument, while the opposing opinion makes a “policy constancy” argument.208 In an earlier empirical study of the 207. Ledbetter, 550 U.S. at 661. Another good example of majority–dissent dueling over general versus specific purpose can be found in CSX Transportation, Inc. v. Alabama Department of Revenue, 131 S. Ct. 1101 (2011), where the majority opinion relied on a tax statute’s broad purpose of restoring financial stability to railroads, id. at 280, while the dissent referenced the more specific statutory purpose of preventing states from discriminating against railroads, id. at 298 (Thomas, J., dissenting).

208. This was true in nineteen of thirty-one cases. See Fowler v. United States, 131 S. Ct. 2045, 2049, 2053 (2011) (majority argues that rejected interpretation would undermine another section of the statute [policy constancy] while dissent argues that majority’s reading adopts a standard that will confuse judges and juries [administrability]); Magwood v. Patterson, 561 U.S. 320, 332–33, 355 (2010) (majority makes an absurd results argument [policy constancy], while dissent argues waste of prosecutorial resources [administrability]); Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 109–10, 137 (2010) (majority argues that rejected interpretation would be unworkable, leading to two different sets of rules depending on where shipping damage occurred [administrability], while dissent emphasizes unfair advantage to some carriers created by majority’s reading [policy constancy]); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 179, 191–92 (2009) (majority argues that rejected burden-shifting framework has proved difficult to apply in practice [administrability], while Justice Breyer’s dissent argues that burden-shifting framework makes more sense because it would otherwise be practically impossible for plaintiffs to prove statutory violations [policy constancy]); Harbison v. Bell, 556 U.S. 180, 193–94, 204 (2009) (majority argues that rejected interpretation would lead to unworkable waste of resources, forcing defendants to get both state and federal counsel [administrability], while dissent argues that majority’s interpretation will lead to absurd results and gamesmanship [policy constancy]); Vaden v. Discover Bank, 556 U.S. 49, 65, 76 (2009) (majority argues that rejected reading would create procedural mess [administrability], while dissent argues that majority’s reading unjustly produces different results for parties with identical claims [policy constancy]); Bartlett v. Strickland, 556 U.S. 1, 17, 40 (2009) (plurality argues unworkability [administrability], while dissent argues consistency with statute’s goals and avoidance of absurd results [policy constancy]); United States v. Hayes, 555 U.S. 415, 425–26, 436 (2009) (majority argues that rejected interpretation would make provision at issue inapplicable in most cases [policy constancy], while dissent argues that majority’s reading makes statute difficult to administer, requiring elaborate fact-finding [administrability]); Greenlaw v. United States, 554 U.S. 237, 251–52, 256 (2008) (majority makes an absurd results argument [policy constancy], while dissent makes a judicial resources argument [administrability]); United States v. Santos, 553 U.S. 507, 528, 530 (2008) (concurrence argues that rejected interpretation would lead to perverse, unthinkable results [policy constancy], while dissent argues that proof problems will plague implementation of concurrence / majority reading [administrability]); United States v. Rodriquez, 553 U.S. 377, 383, 398–99 (2008) (majority claims rejected interpretation could lead to defendants receiving more than the maximum federal sentence

Roberts Court’s statutory interpretation practices, I described the “administrability” form of practical consequences as encompassing discussions about the practical difficulty of implementing the particular interpretation, the likely effect the interpretation will have on judicial or other public resources, the consistency or lack of consistency between federal and state laws created by the interpretation, and the clarity or predictability of the legal rule or landscape going forward in light of the interpretation.209 The “policy constancy” form of practical consequences, by contrast, includes discussions about inconsistencies in statutory policy likely to result from a particular interpretation, the equity or justness of the interpretation, the likelihood that the interpretation will render the statutory provision “meaningless” or ineffective, and assertions that logical absurdities or statutory incoherence will result from the interpretation.210

There are many examples of majority–dissent division over administrability versus policy-constancy concerns. In Gonzalez v. United States,211

the Court considered whether the Federal Magistrate

[policy constancy], while dissent argues that majority’s construction leads to lack of uniformity across states [administrability]); Gonzalez v. United States, 553 U.S. 242, 249–50, 265 (2008) (majority argues that adversary process could not function effectively under rejected construction [administrability], while dissent makes an absurd results argument [policy constancy]); Fed. Express Corp. v. Holowecki, 552 U.S. 389, 404, 420 (2008) (majority argues that rejected interpretation is “illogical and impractical” [policy constancy], while dissent argues that majority’s reading leaves legal rule vague and unsettled [administrability]); Bowles v. Russell, 551 U.S. 205, 211–12, 216–17 (2007) (majority references Congress’s institutional competence to decide statute of limitations parameters [administrability], while dissent references harshness of majority’s result [policy constancy]); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 531, 542–43 (2007) (majority argues unfairness of treating procedural and substantive claims differently [policy constancy], while dissent argues that its construction conserves judicial resources and limits frivolous claims [administrability]); Watters v. Wachovia Bank, 550 U.S. 1, 11, 31–32 (2007) (majority emphasizes structural concerns – history of national bank immunity to state regulation [administrability], while dissent argues fairness [policy constancy]); Lawrence v. Florida, 549 U.S. 327, 336, 342–43 (2007) (majority cautions against interpretation that would encourage certiorari filings as a delay tactic [administrability], while dissent counters that majority’s reading will produce absurd results [policy constancy]); Woodford v. Ngo, 548 U.S. 81, 89, 115–16 (2006) (majority emphasizes burden that prisoner suits place on judicial system [administrability], while dissent criticizes majority’s reading as too absolute [policy constancy]); Rapanos v. United States, 547 U.S. 715, 721–22, 772, 806 (2006) (plurality emphasizes administrative costs and delays associated with permit process [administrability], while concurrence and dissent argue that plurality’s reading produces inconsistent consequences [policy constancy]).

209. Krishnakumar, supra note 17, at 244–45. 210. Id. at 245–46.

Act empowers magistrate judges to preside over the voir dire and selection of prospective jurors in a felony criminal trial based on the consent of defense counsel, or whether the Act requires the personal consent of the defendant for magistrate supervision.212 A majority of the Court read the FMA to allow magistrate supervision based on defense counsel consent alone.213 In so ruling, the majority emphasized the practical necessity of giving defense counsel control over trial-management matters—an “administrability” argument.214 “The adversary process could not function effectively if every tactical decision required client approval.”215 The dissenting opinion countered with a “policy constancy” absurd results argument, noting that the statute requires defendant’s express, informed consent in order for a magistrate judge to conduct a misdemeanor trial and calling it a “glaring” inconsistency to read the statute to require greater consent for defendant’s waiver of rights in a misdemeanor case than in a felony case.216

In earlier work, I described how the “administrability” versus “policy constancy” divide reflects a deeper jurisprudential divide between the Justices over the kind of coherence that jurists should prioritize when construing statutes;217

the fact that this divide shows up prominently in the dueling practical consequences cases is intriguing, and its implications are explored further in Part III of this Article.