Monday, November 25, 2002

JUSTICE BREYER LANGUAGE-WATCH UPDATE! (originally posted 6/18/01)

Consider the following difficult question of statutory interpretation: Does a statute governing "State executive and legislative elections" apply to federal elections for United States Senator? We would have thought the answer was obvious, but Justices Breyer and Ginsburg continue to struggle in their ongoing effort to recognize the distinction between the States and the national government.

Duncan v. Walker, No. 00-121, deals with a provision of the Antiterrorism and Effective Death Penalty Act. That statute tolls the time for the filing of a federal habeas petition while "State post-conviction or other collateral review" is being sought. The majority properly declined to reduce the words "State post-conviction or other" to an utter nullity by allowing "collateral review" to swallow all post-conviction review, State or federal (here, a federal habeas petition). The dissenting justices, however, conjure a bogus ambiguity and quickly proceed to do what they do best -- argue policy.

Come to think of it, though, Justice Breyer does not expressly state in his dissent that he is construing the statute in English. See THE KING'S ENGLISH, below. His Duncan dissent can be seen as spectacularly corroborating the Fourteenth Circuit's bold conjuecture that Justice Breyer often interprets statutes under the rules of some private, non-English language of his own invention.

We will provide further updates on this issue when new evidence comes in.


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