GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2005

Status

Accepted

Abstract

The Supreme Court's statutory interpretation cases present an ongoing clash between mechanical, textualist, rule-based interpretive methods that seek to limit the role of judicial choice and more flexible methods that call upon courts to exercise intelligent judgment. In the recent case of Clark v. Martinez, 125 S. Ct. 716 (2005), the mechanical view of judging prevailed. The Court applied a purported canon of statutory construction that requires that a single phrase in a single statutory provision must always have a single meaning. The Court said that any other interpretive approach would be novel and dangerous. The Court is wrong on both counts. This Article first demonstrates that numerous cases have applied what the Article calls the polymorphic principle that a single phrase in a single statutory provision may have multiple meanings. The Article then uses this question as a window into larger issues of statutory construction and the proper judicial role in our system of government. The article suggests that Martinez cannot be understood independently of its author, Justice Scalia. The case represents a stage in his long-term campaign to limit judicial choice. The article attempts to show that a mechanical view of the judicial role is inappropriate. The Constitution permits the degree of judicial choice necessary to implement the polymorphic principle. Moreover, Justice Scalia's rule does not eliminate judicial choice but only gives the illusion of doing so. Indeed, it has the ironic effect of magnifying the judicial role in statutory interpretation. For these reasons, the Article advocates that courts continue to exercise their appropriate role of making judicious choices in statutory interpretation, a role that will involve continued use of the polymorphic principle in appropriate cases.

GW Paper Series

GWU Law School Public Law Research Paper No. 148; GWU Legal Studies Research Paper No. 148

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