Richard L. Heppner Jr.
Assistant Professor, Thomas R. Kline School of Law of Duquesne University
This Article examines how the metaphors in judicial opinions reveal judicial theories of lawmaking and judicial philosophies. It does so through a close reading of Justice Ginsburg’s majority opinion and Justice Gorsuch’s dissenting opinion in Artis v. District of Columbia, 138 S. Ct. 594 (2018).
Artis was about what the phrase “shall be tolled” means in the federal supplemental jurisdiction statute, 28 U.S.C. §1367. Does it pause the statute of limitations while a state-law claim is in federal court or keep it running? In holding that Congress used “stop the clock” tolling, an “off-the-shelf” legal device that pauses the statute of limitations, Justice Ginsburg’s majority opinion uses conventional, mechanistic metaphors. Justice Gorsuch’s dissent uses more elaborate, agrarian metaphors to argue that Congress used a stricter “grace period” version of tolling because “[w]hen Congress replants the roots of preexisting law in the federal code, this Court assumes it brings with it the surrounding soil.”
This Article shows that Justice Ginsburg’s mechanistic metaphors describe lawmaking like engineering and bespeak a mode of judicial interpretation based on purpose and precedent—while Justice Gorsuch’s agrarian metaphors hark back to a pastoral conception of lawmaking and interpretation “rooted” in a mythical common-law history and tradition. It then compares Justice Ginsburg’s more understated use of conventional metaphors to Justice Gorsuch’s more performative metaphorical technique, arguing that their different rhetorical strategies reflect their different visions of lawmaking and interpretive philosophies. And it closes by showing how close attention to the metaphors they use can reveal the flaws in each approach.
Read more here: https://mckinneylaw.iu.edu/ilr/pdf/vol56p329.pdf