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This article examines how the metaphors in judicial opinions reveal judicial theories of lawmaking and judicial philosophies, through a close reading of Justice Ginsburg’s majority opinion and Justice Gorsuch’s dissenting opinion in the 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 a state-law claim’s statute of limitations pause or continue to run while the claim is in federal court? In holding that Congress used “stop the clock” tolling, an “off-the-shelf” legal device that pauses statute of limitations, Ginsburg’s majority opinion uses conventional, mechanistic metaphors to hold that. 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 Ginsburg’s mechanistic metaphors describe lawmaking like engineering and bespeak a mode of judicial interpretation based on purpose and precedent—while 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 Ginsburg’s more understated use of conventional metaphors to Gorsuch’s more performative metaphorical technique, arguing that their different rhetorical strategies reflect both their visions of lawmaking and their own interpretive philosophies. And it closes by showing how close attention to the metaphors they use can reveal the flaws in each approach.

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Creative Commons Attribution 4.0 International License
This work is licensed under a Creative Commons Attribution 4.0 International License.

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