Document Type
Article
Publication Date
2012
Abstract
In this Article, I begin by laying a basic theoretical foundation for understanding how language choice provides contextual cues to direct interpretation. Next, I analyze cases that use the "Court-Packing Plan" language. I argue that these references are intended to trigger a response in the reader that is sympathetic to judicial independence and, in some instances, to judicial incursions into policymaking. I then analyze references to the "switch in time" language, extracting the arguments about constitutional methodology and judicial activism embedded in that phrase. Here, I argue that the phrase "switch in time" is deployed to remind the reader of what happens when the Court overreaches and finds it necessary to radically change course or risk permanent institutional damage. Finally, I consider the implications of using both of these phrases in the same opinion. I contend that attention to language choice uncovers how the judiciary uses the institutional clash of the 1930's as a rhetorical tool and reveals how this episode in America's political and legal history entered our culture of argument about our system of government and the role of the judiciary as a constitutional decision-making body within that system.
Recommended Citation
15 U. Pa. J. Const. L. 61 (2012).
Comments
Posted with permission.