Supreme Court Articles 139 Harv. L. Rev. 679

Practical Consequences in Statutory Interpretation

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Introduction

It is widely agreed that textualism is now the dominant interpretive methodology employed by the Justices on the U.S. Supreme Court.1 Indeed, even those Justices not broadly considered textualists2 regularly engage in close textual analysis and employ textual interpretive tools.3 And yet, despite textualism’s clear methodological victory, all of the members of the modern Roberts Court continue to regularly invoke one decidedly atextual interpretive tool without much explanation or justification — that is, practical consequences.4

This is curious because practical consequences exemplify nearly all of the interpretive characteristics that modern textualism rejects: They are divorced from the statute’s text; they amplify judicial discretion and border on judicial policymaking; and they are loose and amorphous — lacking clear guiding principles or parameters. And yet, it has long been the case that when courts — including the increasingly textualist U.S. Supreme Court — interpret statutes, they regularly reference the practical consequences engendered by their chosen (or rejected) statutory reading.5

Consider a few examples:

In Van Buren v. United States,6 the Court construed a provision of the Computer Fraud and Abuse Act of 19867 (CFAA) that “makes it illegal ‘to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.’”8 The case involved a police sergeant who ran a license-plate search in a law enforcement computer database in exchange for money from a private party.9 The search violated police department policy, which authorizes officers to obtain database information only for law enforcement purposes.10 At issue was whether Van Buren’s search also violated the CFAA because he was not “‘entitled so to obtain’ the license-plate information.”11 In an opinion authored by Justice Barrett, the Court held that Van Buren’s actions did not violate the CFAA because the statute covers only those who obtain information from areas in a computer that they are not authorized to access — and does not cover offenders, like Van Buren, who have improper motives for obtaining information that they are authorized to access.12

In so ruling, the Court relied on several traditional textual interpretive tools and also noted the practical consequences that would follow if it adopted the Government’s proposed construction of the CFAA. Justice Barrett’s majority opinion observed, for example, that “the Government’s interpretation of the statute would attach criminal penalties to a breathtaking amount of commonplace computer activity,” and that if the CFAA “criminalizes every violation of a computer-use policy, then millions of otherwise law-abiding citizens are criminals.”13 The opinion provided several real-world illustrations of such commonplace activity — noting that, on the Government’s reading, “an employee who sends a personal e-mail or reads the news using her work computer has violated the CFAA” as has an internet user who “embellish[es] an online-dating profile” or “us[es] a pseudonym on Facebook” in violation of the service agreement she signed when joining.14 The majority used these examples to demonstrate, in essence, that the Government’s reading could not be correct because it would produce a series of absurd results — criminalizing commonplace behavior that most people would agree should not be criminalized15 and “inject[ing] arbitrariness into the assessment of criminal liability.”16

Justice Thomas dissented, contending that the CFAA should be construed to cover Van Buren’s conduct.17 His opinion likewise relied on several textual interpretive tools — and offered competing practical consequences arguments. Specifically, Justice Thomas claimed that the majority’s interpretation “also leads to awkward results”18 and provided examples of situations in which the majority’s construction would allow behavior that was clearly problematic to escape CFAA coverage: an employee at a credit-card company who uses his access to purchase-history data for fraud monitoring to obtain his ex-wife’s purchase-history data;19 an employee who “deletes every file on a computer” “minutes before resigning”;20 or a scientist authorized to “obtain blueprints for atomic weapons” who obtains that data “for the improper purpose of helping an unfriendly nation build a nuclear arsenal.”21 Like the majority, the dissent used these in-its-view absurd practical consequences to argue — that is, as evidence — that the Court’s interpretation must be incorrect.

Similarly, in all of its recent “major questions” cases, the Court has placed significant weight on the practical effects that an agency’s interpretation would impose — trotting out detailed facts and figures about the number of employees who would have to get vaccinated under OSHA’s vaccine-or-test mandate,22 the dollar amounts that landlords would lose under the Centers for Disease Control and Prevention’s (CDC) eviction moratorium,23 the economic costs of shifting to cleaner fuels under the EPA’s Clean Power Plan,24 and the cumulative financial burden on taxpayers and the federal government under the Education Department’s student loan forgiveness program.25

In all of the cases and opinions described above, the Court’s (or dissent’s) consideration of practical consequences played a noticeable, but undefined, role in the interpretive analysis. Both Van Buren opinions and at least two of the “major questions” opinions led with textual analysis, and yet the fact that they took the time to also articulate practical consequences arguments (sometimes at length) is noteworthy. Moreover, neither Van Buren nor the “major questions” cases are anomalous. Rather, they are emblematic of the reality that whether textualists acknowledge it or not, practical consequences continue to play an important, enduring role in the Supreme Court’s statutory jurisprudence.

The Court’s regular use of practical consequences in statutory cases has not gone unnoticed. Several scholars have commented on the frequency with which the modern Court — and especially the textualist Justices — reference practical considerations in statutory cases.26 But no article to date has systematically examined how precisely the Court uses practical consequences when construing statutes, or what kinds of practical arguments it employs to justify its statutory constructions.27 More importantly, no article has theorized broadly about what the Court’s continued reliance on practical consequences means, or should mean, for modern textualism — and its sometimes rigid rejection of nontextual interpretive aids.

This Article seeks to fill that gap. It provides the first empirical and doctrinal analysis of how the modern Supreme Court uses practical consequences to inform its statutory constructions, based on a study of 667 statutory cases decided during the Roberts Court’s first sixteen-plus Terms (from January 2006 through June 2022). The Article aims to illuminate the manner in which the Court invokes practical consequences when construing statutes, including the many different forms of practical considerations the Court takes into account and offers as justifications when determining statutory meaning.

Five points stand out from the data and doctrinal analysis: (1) the Roberts Court’s overall use of practical consequences to construe statutes is significant — 52.8% of the cases in the dataset contained at least one opinion that referenced practical consequences;28 (2) all of the Justices, irrespective of their interpretive methodologies, referenced practical consequences regularly in the opinions they authored;29 (3) when the Justices invoked practical consequences, they only occasionally (14.7% of 505 opinions) did so defensively, to counter practical arguments raised by an opposing opinion;30 (4) likewise, the Justices rarely invoked practical consequences in a “passing” or “minimal” manner — the vast majority of such references placed at least some weight on the practical considerations raised;31 and (5) the Justices exercised significant discretion and normative leeway when discussing the practical consequences associated with a particular interpretation — both in predicting those consequences and in deciding what kinds of consequences should play a role in determining statutory meaning at all.

A number of doctrinal trends also are worth noting. First, the Court regularly ties its practical consequences arguments to claims about congressional intent or purpose32 — a practice that is at odds with textualism’s rejection of legislative purpose and intent as illegitimate interpretive tools.33 Second, in 41.7% of the divided-vote cases studied in the dataset, majority (or concurring) and dissenting opinions offered competing predictions and assessments of the practical consequences that would follow from a particular interpretation.34 In some of these cases, the Justices disagreed about what consequences an interpretation would generate;35 in others they disagreed about whether those consequences would be desirable or undesirable;36 and in still other cases majority and dissenting opinions focused on different kinds of consequences — as where a majority opinion stressed the absurdities a rejected interpretation would produce, while a dissenting opinion warned about the majority interpretation’s effect on judicial resources.37

This Article evaluates the normative and theoretical implications of these empirical and doctrinal trends. It argues that the Court’s current use of practical consequences is loose, untethered, and undefined — as well as in marked tension with textualism’s theoretical ideals. It suggests that, going forward, the Court and modern textualism should acknowledge the role that practical consequences play in statutory interpretation — as well as seek to better define and cabin the parameters of that role.

The Article proceeds in three Parts. Part I reviews different theoretical takes on the role that practical consequences should play in statutory interpretation as well as the existing scholarly commentary on the Roberts Court’s use of this interpretive tool. Part II reports data about the Court’s use of practical consequences in the 667 statutory cases decided during its first sixteen-and-a-half Terms. Part II also provides some doctrinal observations about the Court’s use of practical consequences in construing statutes, including a taxonomy of several different forms of practical arguments the Court uses in its statutory cases. Part III evaluates the implications of the interpretive practices described in Part II, highlighting the looseness and lack of structure that plague the Court’s current references to practical consequences, as well as the tension between the textualist Roberts Court’s theoretical rejection of purpose, intent, and policy considerations and its regular on-the-ground references to practical consequences arguments. Part III concludes by considering a few ways the Court might address these theoretical and coherence problems.

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* Agnes Williams Sesquicentennial Professor of Legislation, Georgetown University Law Center. I owe deep thanks for valuable insights and conversations to William Eskridge Jr., Daniel Deacon, Jonah Gelbach, Jonathan Gould, Margaret Lemos, Aaron-Andrew Bruhl, Nina Mendelson, Julian Davis Mortenson, and participants at workshops at Yale, Michigan, University of California, Berkeley, and Arizona State law schools.  I am especially indebted to my husband, Ron Tucker, for his patience and support throughout this project.  Special thanks to Dean William Treanor and Georgetown University Law Center for generous research assistance.  Kathryn Baldwin, John Burger, Danielle DelGrosso, Thomas Combs, Christina Corcoran, Brian Dolan, Sade Forte, Elizabeth Fray, Kim Friedman, Theodore Miller, Ilya Mordukhaev, 
Vince Nibali, Melissa Parres, Barbara Reilly, Jennifer Roseman, Peter Ryan, Christine Sammarco,
Jonathan Sclar, Sean Kelly, Ashleigh Shelton, Samuel Sroka, Jennifer Thomas, Rita Wang, and Lisa
Yang provided excellent research assistance.  Janet Ruiz-Kroll provided invaluable assistance with the tables. All errors are my own. 

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Footnotes

  1. ^ See Charlie D. Stewart, Comment, The Rhetorical Canons of Construction: New Textualism’s Rhetoric Problem, 116 Mich. L. Rev. 1485, 1486 (2018).

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  2. ^ Commentators widely consider Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett to be textualist or textualist-leaning. See John F. Duffy, In re Nuijten: Patentable Subject Matter, Textualism and the Supreme Court, Patently-O (Feb. 5, 2007), http://patentlyo.com/patent/2007/02/in_re_nuijten_p.html [https://perma.cc/QZ8K-UYET] (noting that Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito “adhere to some form of fairly rigorous textualism”); Stewart, supra note 1, at 1486 (stating that Justice Gorsuch is a textualist); Domenico Montanaro, Who is Brett Kavanaugh, President Trump’s Pick for the Supreme Court?, NPR (July 9, 2018, at 21:06 ET), https://www.npr.org/2018/07/09/626164904/who-is-brett-kavanaugh-president-trumps-pick-for-the-supreme-court [https://perma.cc/7FXH-YGVV] (explaining that Justice Kavanaugh “believes in textualism and originalism”); Evan Bernick, Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron, Yale J. on Regul.: Notice & Comment (July 3, 2018), https://www.yalejreg.com/nc/judge-amy-coney-barrett-on-statutory-interpretation-textualism-precedent-judicial-restraint-and-the-future-of-chevron-by-evan-bernick [https://perma.cc/V8MK-4SJA] (stating that Justice Barrett “is a textualist”). As explained further, Justices Sotomayor, Kagan, and Jackson are not widely considered textualists. See infra note 151; Kimberly Strawbridge Robinson & Lydia Wheeler, Jackson Goes It Alone in Rebuke of Supreme Court Colleagues, Bloomberg L. (June 20, 2025, at 15:22 ET), https://news.bloomberglaw.com/us-law-week/jackson-goes-it-alone-in-rebuke-of-supreme-court-colleagues [https://perma.cc/ENB3-N9NJ].

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  3. ^ See infra Table 2, pp. 705–06.

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  4. ^ See infra Table 2, pp. 705–06.

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  5. ^ See, e.g., Riggs v. Palmer, 22 N.E. 188, 189–90 (N.Y. 1889); Pub. Citizen v. U.S. DOJ, 491 U.S. 440, 454 (1989).

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  6. ^ 141 S. Ct. 1648 (2021).

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  7. ^ 18 U.S.C. § 1030.

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  8. ^ Van Buren, 141 S. Ct. at 1652 (quoting 18 U.S.C. § 1030(e)(6)).

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  9. ^ See id. at 1653.

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  10. ^ See id.

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  11. ^ Id. at 1654 (emphasis omitted) (quoting § 1030(e)(6)).

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  12. ^ See id. at 1655, 1662.

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  13. ^ Id. at 1661 (emphases added).

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  14. ^ Id.

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  15. ^ See id.

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  16. ^ Id. at 1662.

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  17. ^ Id. at 1663 (Thomas, J., dissenting).

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  18. ^ Id. at 1666.

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  19. ^ See id.

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  20. ^ Id.

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  21. ^ Id. at 1666–67.

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  22. ^ See NFIB v. Dep’t of Lab., 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring) (stating that eighty-four million Americans would be affected by the mandate).

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  23. ^ See Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam) (estimating fifty billion dollar cost to landlords).

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  24. ^ See West Virginia v. EPA, 142 S. Ct. 2587, 2604 (2022) (stating that the rejected regulation would “raise retail electricity prices” and “would entail billions of dollars in compliance costs . . . , require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs”).

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  25. ^ See Biden v. Nebraska, 143 S. Ct. 2355, 2373 (2023) (estimating a “cost [to] taxpayers ‘between $469 billion and $519 billion’”).

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  26. ^ See Victoria Nourse, The Paradoxes of a Unified Judicial Philosophy: An Empirical Study of the New Supreme Court: 2020–2022, 38 Const. Comment. 1, 2 (2023); Jane S. Schacter, Text or Consequences?, 76 Brook. L. Rev. 1007, 1009 (2011); Jane S. Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 Stan. L. Rev. 1, 21 (1998) [hereinafter Schacter, Confounding Originalism]; Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court’s First Era: An Empirical and Doctrinal Analysis, 62 Hastings L.J. 221, 237 (2010) [hereinafter Krishnakumar, First Era]; Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073, 1107–13 (1992).

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  27. ^ The closest precursors are a 1998 article by Professor Jane Schacter that examined one Term’s worth of statutory interpretation cases, see Schacter, Confounding Originalism, supra note 26, at 21; a 2008 article by Professor Miranda McGowan that examined twenty Terms’ worth of Justice Scalia’s dissenting opinions, see Miranda McGowan, Do As I Do, Not As I Say: An Empirical Investigation of Justice Scalia’s Ordinary Meaning Method of Statutory Interpretation, 78 Miss. L.J. 129, 144 (2008); and two articles I authored in 2010 and 2012 that theorized about two forms of practical consequences arguments, see Krishnakumar, First Era, supra note 26, at 244, and examined closely the anti-messiness form of practical consequences argument, see Anita S. Krishnakumar, The Anti-Messiness Principle in Statutory Interpretation, 87 Notre Dame L. Rev. 1465, 1468 (2012). Each of these articles provides case examples of the kinds of practical arguments the Court employs, but none attempts to systematically categorize or evaluate the universe of such arguments; moreover, all of these articles are over a decade old and are limited in scope, covering only one to three Terms’ worth of cases or only a subset of one Justice’s opinions.

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  28. ^ Of the 667 statutory cases in the dataset, 352 contained at least one opinion that in-voked practical consequences. For a list of these cases, see Appendix, Harv. L. Rev., https://harvardlawreview.org/print/vol-139/practical-consequences-in-statutory-interpretation [https://perma.cc/6VSJ-8XDY].

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  29. ^ See infra Table 2, pp. 705–06.

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  30. ^ See infra Table 4, p. 709

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  31. ^ See infra Table 3, p. 707 (reporting that 14.5% of opinions that referenced practical consequences placed “minimal” weight on such consequences, while 63.0% placed “some” weight and 22.6% placed “heavy” weight on such consequences).

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  32. ^ See infra Table 9, p. 722.

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  33. ^ See Nourse, supra note 26, at 56.

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  34. ^ Compare, e.g., Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020) (discussing petitioners’ desire to serve the poor without violating their consciences), with, e.g., id. at 2400 (Ginsburg, J., dissenting) (discussing female employees’ desire for continued contraception coverage). See infra section III.A, pp. 740–43.

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  35. ^ Compare, e.g., Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1512–13 (2020) (predicting that a contrary interpretation of the Copyright Act would lead states to charge subscriptions for access to their legislative materials), with, e.g., id. at 1522 (Thomas, J., dissenting) (predicting that states may “stop producing annotated codes” under the majority’s interpretation).

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  36. ^ Compare, e.g., NFIB v. Dep’t of Lab., 142 S. Ct. 661, 666 (2022) (per curiam) (noting the economic costs of OSHA’s regulation), with, e.g., id. at 672 (Breyer, J., dissenting) (noting the health benefits of OSHA’s regulation).

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  37. ^ Compare, e.g., Greenlaw v. United States, 554 U.S. 237, 251 (2008) (rejecting an interpretation that “would yield some strange results”), with, e.g., id. at 261 (Alito, J., dissenting) (explaining that the Court’s interpretation “may disserve the interest in judicial efficiency in some cases”).

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