Deadlines, Schmedlines

supreme court fountain

It was a case of very strange bedfellows today at the Supreme Court.  The 5-4 decision in Dolan v. U.S. (opinion here) wasn’t split on ideological lines, but on lines of seniority.  The majority consisted of the five most junior Justices, while the senior Justices were joined in a solid dissent.  So Thomas and Alito sided with Breyer, Ginsburg and Sotomayor.  And Roberts and Scalia were united with Stevens and Kennedy.

What gives?  We suggest that it reflects a changing approach to statutory interpretation. 

The case is about how to interpret 18 U.S.C. § 3664(d)(5), which says a sentencing court has to order restitution within 90 days of sentencing, but fails to specify what happens if the deadline is missed.  Specifically, it says that, if losses aren’t calculated 10 days before sentencing, the court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.”  That word “shall” is pretty strong, and its accepted meaning is “must.”  In other words, a court has no choice here, no discretion, but “must” set a restitution amount within 90 days.  But there is no provision for remedies if that doesn’t happen.  So the Court had to fill in the blanks.

The majority reasoned that, given that the whole point of the statute is to ensure speedy restitution to victims, Congress couldn’t possibly have intended for restitution to be forfeited if a court takes too long.  And Congress wasn’t particularly concerned with giving finality to defendants, but anyway so long as the defendant is on notice that restitution is in fact going to be ordered, the defendant isn’t harmed if the deadline is missed. 

The dissenting Justices pointed out that this interpretation makes a nullity of 18 U.S.C. § 3664(d)(5).  The 90-day deadline is no deadline at all.  The majority allows restitution to be ordered at any time after sentencing, thereby gutting the plain language of the statute.


There are a number of canons of statutory construction, many of which have been around for a long time.  Taken together, they’re fairly commonsensical and intuitive.  If something’s ambiguous, you figure out its meaning from the context of the rest of the statute.  Words that are used are presumed to have meaning, and aren’t supposed to be ignored.  Et boring cetera.

Here, there’s a sort of conflict between different canons.  The majority’s preference is to fill in the blanks from the context, and if that means undermining a clearly-worded portion of the statute, then so be it.  The minority says you can’t do that — if Congress said courts “shall” do something, courts can’t come along and change that to “may” just because it seems to make better sense.

We’re in line with the minority, as it happens.  An interpretation of an ambiguity shouldn’t be allowed to trump existing clear language.  That would make the court a legislator, deleting language that had been enacted, and inserting language that was never voted on.  Seems like a straightforward violation of the separation of powers.


Note that this isn’t an originalism issue.  It’s not about interpreting the Constitution, and whether its meaning changes over time.  It’s not even about whether the meaning of a statute changes over time.  So this isn’t a formalist/activist issue, and that is reflected by the fact that Scalia and Stevens are on the same side here.

And this isn’t a conservative/liberal issue, either.  It’s not really a case of the Justices imposing their own judicial philosophy on the statute.  Everyone’s trying to interpret what Congress was doing. 

Instead, the issue is whether Congress should be forced to go back and do it right, or whether the courts can step in and save everyone the hassle.  The senior minority would have sent the statute back to Congress to define the consequences for missing the deadline.  The junior majority says we all know what they would be, so let’s go ahead and define them here.

It’s kinda like formalism/activism, but not quite.  It’s sorta like conservative/liberal, but not really.  We dunno what you’d call it.  It’s more rule-oriented vs. goal-oriented.  One looks back at what Congress said, and the other looks forward to what Congress meant.


Well, whatever’s going on, the rule now is that the 90-day deadline doesn’t count, so long as the defendant knew the amount was going to be set at some point in the future.  That sucks for defendants in complex cases, particularly those involving multiple defendants, where the amount of loss could be litigated several times in separate sentencing proceedings (we’re involved in a case like that right now, where the various sentencing proceedings have been going on since 2008, so we know of what we speak).  If the 90-day rule was hard and fast, then the government wouldn’t be able to muck around on the issue of restitution and put it off till after everyone else got sentenced, and they’d had the chance to re-litigate the issue to death.  They’d be in a pickle, and would have to get everyone sentenced within 90 days of each other.  But under today’s ruling, the government can take its time, while defendants suffer the extra expense and agida, and victims wait ever longer to get their money back.

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1 Response

  1. Stela James says:

    Nice Post.

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