A few years ago, in the case of Clark v. Martinez, the Supreme Court, speaking through Justice Scalia, proclaimed that a single term in a statute cannot have different meanings in different cases. Thus, if a statute says, "if facts A or B apply, result C must follow," then C must have the same meaning in cases involving A as in cases involving B. Anything else, the Supreme Court said, would be "novel" and "dangerous."
In response, I wrote an article showing that giving a single statutory term different meaning in different contexts (a practice I called "polymorphic" interpretation) is certainly not novel -- I gave about a dozen concrete examples where courts, including the Supreme Court, had done exactly that -- and I also suggested that it isn't dangerous either, but rather, in certain cases, it is the best and most appropriate approach to statutory interpretation.
A decision today by the Supreme Court shows that my article has had the impact that most scholarship has on the Court's decisions -- which is to say, none. Today the Supreme Court had to interpret a statute that forbids engaging in certain financial transactions involving the "proceeds" of certain unlawful activity. The question was whether "proceeds" means only the profits of the unlawful activity, or whether it could include the gross receipts.
In response, I wrote an article showing that giving a single statutory term different meaning in different contexts (a practice I called "polymorphic" interpretation) is certainly not novel -- I gave about a dozen concrete examples where courts, including the Supreme Court, had done exactly that -- and I also suggested that it isn't dangerous either, but rather, in certain cases, it is the best and most appropriate approach to statutory interpretation.
A decision today by the Supreme Court shows that my article has had the impact that most scholarship has on the Court's decisions -- which is to say, none. Today the Supreme Court had to interpret a statute that forbids engaging in certain financial transactions involving the "proceeds" of certain unlawful activity. The question was whether "proceeds" means only the profits of the unlawful activity, or whether it could include the gross receipts.
Four Justices said it meant "profits," four said it meant "gross receipts" and one (Justice Stevens, noted for often being the odd man out throughout his long career on the Court) said that it could mean "profits" for some kinds of unlawful activity and "gross receipts" for others, depending on the nature of the activity. This last suggestion was criticized in the main opinion (by Justice Scalia, naturally) as inconsistent with the Clark v. Martinez prohibition against such interpretation.
Hmmm . . . it's almost as though Justice Scalia and those who joined him today don't know that Clark's suggestion that there is something "novel" about polymorphic interpretation has been thoroughly debunked. Well, probably, they don't. They're busy people and can't review everything that's happening in the scholarly journals.
I did get one thing right, though. In today's opinion, Justice Scalia points out that Justice Stevens joined Clark v. Martinez. But as I observed in my article, the Justices don't seem to regard themselves as bound by the interpretive methodology. I pointed out that Justice Stevens had previously joined polymorphic opinions and I doubted that he would stick to the "unitary" rule of Clark. And he didn't. And trust me, the others won't either, when they get to a case where polymorphism will suit them better.
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