GW Law Faculty Publications & Other Works Faculty Scholarship
2005
The Polymorphic Principle and the Judicial Role in Statutory Interpretation
Jonathan R. Siegel George Washington University Law School, [email protected]
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Recommended Citation Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex. L. Rev. 339 (2005).
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Table of Contents
INTRODUCTION 1
I. CLARK v. MARTINEZ AND THE UNITARY PRINCIPLE 4 A. The (Weak) Unitary Principle 5 B. The Strong Unitary Principle 9
II. THE POLYMORPHIC PRINCIPLE 13 A. Polymorphic Operators 13 B. A Parade of Polymorphisms 15 1. “Constitutional Avoidance” Polymorphism 17 a. Implied Polymorphism: the False Claims Act 17 b. Express Polymorphism: the Medicare Act 20 c. Tacit Polymorphism: the National Labor Relations Act 22 2. “Subconstitutional” Polymorphism 23 3. “Policy” Polymorphism 26 4. “Stare Decisis” Polymorphism 29 5. Polymorphism in Constitutional Interpretation 29
III. THE POLYMORPHIC PRINCIPLE AND THE JUDICIAL ROLE 30 A. A Pure Linguistic Approach 31 B. A Canonical Approach 32 C. The Separation of Powers Approach 35 1. Justice Scalia and Judicial Choice 35 2. Judicial Choice and the “Faithful Agent” Model 38 3. Eliminating Judicial Choice – Reality and Illusion 41 4. The Ratchet Effect of the Strong Unitary Principle 43 5. Practical Arguments Concerning the Strong Unitary Principle 47
IV. THE POLYMORPHIC FUTURE 49 A. Polymorphism and Stare Decisis 49 B. Practical Polymorphic Advice 55 C. The Role of Congress 57
CONCLUSION 58
The Polymorphic Principle and the Judicial Role in Statutory Interpretation
by Jonathan R. Siegel
[We decline to] establish within our jurisprudence, beyond the power of Congress to remedy, the dangerous principle that judges can give the same statutory text different meanings in different cases.
Clark v. Martinez, 125 S. Ct. 716, 727 (2005).
INTRODUCTION
The Supreme Court’s statutory interpretation cases present an ongoing clash among methods of statutory interpretation—a clash that reflects a larger dispute over the proper judicial role in our system of government. On the one side, the textualists tend to prefer mechanical, rules-based methods of interpretation that, at least ostensibly, minimize the role of judicial choice in the interpretive process.1 The other side, often (though not invariably) in the name of implementing congressional intent, prefers a more flexible, standards-based approach, which calls upon courts to make intelligent choices and, on appropriate occasions, to deviate from the most straightforward or canonical reading of statutory text in order to reach the most appropriate result.2 The two sides thus have different visions of the judicial role. In this ongoing clash among interpretive methods, the textualists recently won another battle. Indeed, their victory was unusually powerful. Not only did Justice Scalia convince the Supreme Court to resolve a case on textualist grounds, he convinced six other Justices to join an opinion