ROOTED: METAPHORS AND JUDICIAL PHILOSOPHY IN
ARTIS V. DISTRICT OF COLUMBIA

RICHARD L. HEPPNER JR.*

ABSTRACT

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

* Assistant Professor, Thomas R. Kline School of Law of Duquesne University. J.D.,

Harvard Law School; Ph.D. in English Literature, Tufts University. Thank you to Duquesne Kline

and my colleagues there for their support during the drafting process, especially Professors

Maryann Herman, Ashley London, Jane Moriarty, Wesley Oliver, and John Towers Rice. Thank

you to the participants in and organizers of the 2022 Law Culture & The Humanities Conference,

especially Chantelle van Wiltenburg, Helena Whalen-Bridge, and Nancy Marder for their feedback

during our panel on Rethinking Court Practice. I owe many thanks to the Law & Literature

Discussion Group and the Civil Procedure Works-in-Progress Series at the Southeastern

Association of Law Schools 2022 Annual Conference, particularly Judy Cornett, Rob Atkinson,

Susan Ayres, Kat Macfarlane, Tanya Pierce, and Aric Short for their attentive readings and

insightful comments. And thank you to everyone at the 2018 Monongahela River Colloquium at

Duquesne, where I shared some early ideas that eventually led to this Article, particularly Michael

Madison who probably does not even remember his encouraging and perceptive comments during

our discussion afterward. Thank you also to the editors of the Indiana Law Review for their careful

reading and insightful suggestions during the editing process. As always, thank you the most to M.

Soledad Caballero. They each improved this Article immensely, and I remain responsible for any

flaws.



330 INDIANA LAW REVIEW [Vol. 56:329

use can reveal the flaws in each approach.

TABLE OF CONTENTS
INTRODUCTION 
I. METAPHORS IN LEGAL DISCOURSE 

A. Skeptical Views of Metaphor
1. Metaphors as Deception
2. Metaphors as Ornamentation 

B. Favorable Views of Metaphor
1. Metaphors as Concepts
2. Metaphors as Imagination 

II. READING ARTIS V. DISTRICT OF COLUMBIA 
A. Legal Argument in Artis 
B. Metaphors for Law in Artis

1. Justice Ginsburg's Mechanistic Metaphors 
2. Justice Gorsuch's Agrarian Metaphors 

C. Metaphorical Effects in Artis 
D. The Excess of Metaphors in Artis 

CONCLUSION

INTRODUCTION

The U.S. Supreme Court is sharply divided between Justices who favor
interpretive approaches based on purpose and precedent and those who favor
approaches rooted in history and tradition.1 This division manifested itself in the
figurative language used in the majority and dissenting opinions in the 2018 case
Artis v. District of Columbia. That case interpreted the tolling provision of the
federal supplemental jurisdiction statute, 28 U.S.C. § 1367.2 The Court’s two
opinions on this procedural issue employ different kinds of metaphors that
bespeak different judicial philosophies and ideologies about the nature of law and
the process of lawmaking. Justice Ginsburg’s majority opinion uses
straightforward mechanistic metaphors that suggest a pragmatic view of law
based on purpose and precedent. Justice Gorsuch’s dissenting opinion uses
elaborate naturalistic metaphors that bespeak a commitment to a certain history
and tradition. 

The question in Artis was what happens to the statute of limitations when a

1. See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2450 (2022) (“The problems

with elevating history and tradition over purpose and precedent are well documented.”); Dobbs v.

Jackson Women’s Health Org., 142 S. Ct. 2228, 2325-26 (Breyer, Sotomayor, and Kagan, JJ.,

dissenting) (explaining that the Framers “defined rights in general terms to permit future evolution

in their scope and meaning”); N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2176-79

(2022) (Breyer, J., dissenting) (explaining the pitfalls of a “near-exclusive reliance on history” and

offering examples of when the Court has “misread” history in the past); Brown v. Davenport, 142 S.

Ct. 1510, 1535 (2022) (Kagan, J., dissenting) (noting the inaccuracies risked when courts “play

amateur historian”).

2. Artis v. District of Columbia, 138 S. Ct. 594 (2018).



2023] ARTIS V. DISTRICT OF COLUMBIA 331

state-law claim filed in federal court based on supplemental jurisdiction is
dismissed.3 How long does the plaintiff have to refile the state-law claim in state
court? The supplemental jurisdiction statute provides that the “period of
limitations” for such claims “shall be tolled while the claim is pending [in federal
court] and for a period of 30 days after it is dismissed unless State law provides
for a longer tolling period.”4 Artis considered whether that tolling provision
meant that the state-law statute of limitations was paused or allowed to run while
the claim was in federal court.5

The plaintiff, Stephanie Artis sued the defendant, the District of Columbia,
in federal court, asserting both a federal claim (with federal question jurisdiction)
and state-law claims (with supplemental jurisdiction).6 When she filed her
complaint, she had nearly two years left on her state-law statutes of limitations.7

About two and a half years later, the federal court granted summary judgment on
her federal claim and declined to exercise jurisdiction over her state-law
claims—but it noted that she would “not be prejudiced . . . because 28 U.S.C.
§ 1367(d) provides for tolling of the statute of limitations during the period the
case was here and for at least 30 days thereafter.”8 Nonetheless, when Artis re-
filed her state-law claims in the District of Columbia courts,9 they saw it
differently, ruling that her claims were time-barred.10

The U.S. Supreme Court had to choose between two readings of the tolling
provision: the D.C. courts’ “grace period” reading which gave plaintiffs thirty
days to re-file in state court; and Stephanie Artis’ “stop-the-clock” reading which
gave plaintiffs thirty days plus the time that was left on the statute of limitations
when they first filed.11 The Court split 5-4 on this question. Justice Ginsburg,
writing for the majority (joined by Justices Roberts, Breyer, Sotomayor, and
Kagan), adopted the stop-the-clock reading.12 Justice Gorsuch, writing for the
dissent (joined by Justices Kennedy, Thomas, and Alito), would have adopted the
grace-period reading.13

The two opinions differ not only in how they answered the question presented
but in the figurative language they use to frame it. Justice Ginsburg’s majority
opinion adopting the “stop the clock” reading of tolling describes Congress as

3. Id. at 598.

4. 28 U.S.C. §1367(d).

5. Artis, 138 S. Ct. at 598.

6. Id. at 599.

7. Id.

8. Id. at 599-600 (quoting Artis v. District of Columbia, 51 F. Supp. 3d 135, 142 (D.D.C.

2014)).

9. District of Columbia courts function as State courts for purposes of § 1367. 28 U.S.C.

§ 1367(e).

10. Artis, 138 S. Ct. at 599-600 (citing Artis v. District of Columbia, 51 F. Supp. 3d 135, 142

(D.D.C. 2014)).

11. Id. at 601, 600 n.3.

12. Id. at 598.

13. Id. at 608-17 (Gorsuch, J., dissenting).



332 INDIANA LAW REVIEW [Vol. 56:329

using an “off-the-shelf” legal “device” (tolling) that pauses the statute of
limitations.14 Justice Gorsuch’s dissent, which would have held adopted the
thirty-day “grace period” version of tolling, describes the lawmaking process
differently: “[w]hen Congress replants the roots of preexisting law in the federal
code, this Court assumes it brings with it the surrounding soil.”15 

This Article examines the import of these metaphorical choices. What
difference does it make a difference that Justice Ginsburg uses mechanistic
imagery while Justice Gorsuch uses naturalistic imagery? What difference does
it make that Ginsburg’s use of metaphor is more conventional and understated,
while Gorsuch’ is more performative and ornamental?

This Article proceeds in two parts. Part I begins with a brief explanation of
metaphor and then canvasses the scholarly views of its role in legal discourse.
Section I.A describes two more traditional, skeptical views of metaphor: that it
is a deceptive supplement or, at best, a distracting ornament that obscures the
rational core of legal reasoning. Section I.B then considers more recent, more
favorable views of metaphor: that it is central to the formulation of abstract legal
concepts and that it enables a productive tension that fuels the imaginative
evolution of legal thought. 

Part II uses that theoretical background to engage in close readings of the
Artis opinions. It begins with a summary of Justice Ginsburg’s and Justice
Gorsuch’s legal arguments (Section II.A) before turning to an analysis of their
metaphorical approaches. Section II.B describes their different metaphoric subject
matter—showing that Ginsburg’s mechanistic metaphors describe the law like a
machine, suggesting a judicial philosophy based on progress, purpose, and
precedent, while Gorsuch’s agrarian metaphors describe the law like a plant with
roots, suggesting a judicial philosophy based on history and tradition. Section
II.C examines the Justices’ different rhetorical techniques when deploying their
chosen metaphors and the effects of those choices. Ginsburg’s understated use of
largely conventional metaphors crafts a convincing majority opinion based on
common sense and logical reasoning. But Gorsuch’s more performative rhetoric
persuades, and perhaps has a more lasting influence, through its impressionistic
invocation of a mythical tradition. Finally, Section II.D explores how each
Justice’s metaphors exceed their control. Ginsburg’s mechanistic metaphors
ironically highlight the role of human intervention in shaping the law. And
Gorsuch’s agrarian metaphors only succeed to the extent that he can obscure the
troubling implications of the traditions they invoke.

I. METAPHORS IN LEGAL DISCOURSE

Like all discourse, legal discourse is full of metaphors and figurative
language. “We live in a magical world of law where liens float, corporations
reside, minds hold meetings, and promises run with the land. The constitutional
landscape is dotted with streams, walls, and poisonous trees. And these wonderful

14. Id. at 606-08.

15. Id. at 613-14 (Gorsuch, J., dissenting).



2023] ARTIS V. DISTRICT OF COLUMBIA 333

things are cradled in the seamless web of law.”16 
Before considering how metaphor and figurative language operate in legal

discourse, let me begin by describing how I am using those terms: a metaphor is
a figure of speech where one object is described (explicitly or implicitly) in terms
of another. It “involves a transfer of meaning from the word that properly
possesses it to another word.”17 According to Aristotle, “[m]etaphor consists in
giving the thing a name that belongs to something else; the transference being
either from genus to species, or from species to genus, or from species to species,
or on grounds of analogy.”18

I intend a broad meaning for the term “metaphor,” encompassing any
figurative language that uses language appropriate for one thing to describe or
draw a comparison to another thing.19 Thus, my use of the terms “metaphor” and
“metaphoric language” includes traditional metaphors (calling one thing by the
name of another: “But, soft! What light through yonder window breaks? It is the
east, and Juliet is the sun”).20 It includes specific types of metaphor like
personification (referring to a nonhuman in human terms: “Because I could not
stop for Death— / He kindly stopped for me”)21 or synecdoche (referring to
something by the name of part of it: “I should have been a pair of ragged claws
/ Scuttling across the floors of silent seas”).22 It also includes similes (which make
otherwise implicit metaphorical comparisons explicit by using “like” or “as”:
“The lights of the town and of the harbour and of the boats seemed like a
phantom net floating there to mark something which had sunk”).23 And it includes
implied metaphors (where the comparison is implied by using descriptive terms
for one thing to describe another: “Hope is the thing with feathers”).24

It is conventional to distinguish between living metaphors (those “offered &
accepted with a consciousness of their nature as substitutes for their literal
equivalents”) and dead metaphors (those that “have been so often used that

16. Thomas Ross, Metaphor and Paradox, 23 GA. L. REV. 1053, 1053 (1989).

17. THOMAS MCLAUGHLIN, Figurative Language, in CRITICAL TERMS FOR LITERARY STUDY

83 (Frank Lentricchia & Thomas McLaughlin eds., 2d ed. 1995). 

18. ARISTOTLE, THE BASIC WORKS OF ARISTOTLE 1476 (Richard McKeon ed., Random House

1941).

19. See generally, DAVID HILLS, Metaphor, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY

(Edward N. Zalta ed., 2017); WARD FARNSWORTH, FARNSWORTH’S CLASSICAL ENGLISH METAPHOR

(2016).

20. WILLIAM SHAKESPEARE, ROMEO AND JULIET act 2, sc. 2 (emphasis added).

21. Emily Dickinson, Because I Could Not Stop for Death (479), available at https://poets.org/

poem/because-i-could-not-stop-death-479 [https://perma.cc/9CQL-EEVS] (last visited Oct. 2, 2022).

22. T.S. Eliot, The Love Song of J. Alfred Prufrock, in PRUFROCK AND OTHER OBSERVATIONS

(1917), available at https://poets.org/poem/love-song-j-alfred-prufrock [https://perma.cc/4PRY-

PP6B] (last visited Oct. 2, 2022).

23. VIRGINIA WOOLF, TO THE LIGHTHOUSE 67 (Houghton Mifflin Harcourt 1981).

24. Emily Dickinson, Hope Is the Thing with Feathers (254), available at https://poets.org/

poem/hope-thing-feathers-254, [https://perma.cc/BYT4-5R25] (last visited Oct. 2, 2022).



334 INDIANA LAW REVIEW [Vol. 56:329

speaker & hearer have ceased to be aware that the words used are not literal”).25

“She walks in beauty, like the night / Of cloudless climes and starry skies”26 is a
living metaphor; “this chair has arms” is a dead one. But it is a spectrum, and the
difference between living and dead metaphors depends on context and usage, “the
dead being sometimes liable, under stimulus of an affinity or a repulsion, to
galvanic stirrings undistinguishable from life.”27

In short, metaphors are a form of figurative language that use language
applicable to one thing to describe a different thing. Rhetoricians call the two
parts of a metaphor the “tenor” (the thing being described) and the “vehicle” (the
thing doing the describing).28 In “Juliet is the sun,” “Juliet” is the tenor and “the
sun” is the vehicle. The key feature of a metaphor—what distinguishes figurative
language from literal language—is that it does not make literal sense. The tenor
and the vehicle are unrelated.

It can help to distinguish metaphors from another kind of comparison that is
common in legal discourse: analogies.29 Whereas analogies assert that ‘this thing
is like that thing’ (and so, in a legal context, they should be treated similarly),
metaphors draw a comparison between the tenor and vehicle without asserting
that they are alike.30 The rhetorical and conceptual power of metaphors depends
on the fact that the two are decidedly dissimilar and that the comparison does not
make literal sense. Thus, while analogies are an accepted component of legal

25. HENRY WATSON FOWLER, Metaphor, in A DICTIONARY OF MODERN ENGLISH USAGE: THE

CLASSIC FIRST EDITION 348-49 (Oxford Univ. Press 2009).

26. George Gordon Byron, She Walks in Beauty (1814) available at https://poets.org/

poem/she-walks-beauty [https://perma.cc/6LXT-QJ9W] (last visited Oct. 2, 2022).

27. FOWLER, supra note 25, at 349.

28. I.A. RICHARDS, THE PHILOSOPHY OF RHETORIC 96 (Oxford Univ. Press 1965).

29. See, e.g., Cass R. Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 741 (1993); Scott

Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument

by Analogy, 109 HARV. L. REV. 923 (1996); Angela Condello, Metaphor as Analogy: Reproduction

and Production of Legal Concepts, 43 J.L. & SOC’Y 8 (2016); Frederick Schauer & Barbara A.

Spellman, Analogy, Expertise, and Experience, 84 U. CHI. L. REV. 249 (2017); Brian N. Larson,

Law’s Enterprise: Argumentation Schemes & Legal Analogy, 87 U. CIN. L. REV. 663 (2019).

Although Aristotle considered analogies to be a type of metaphor (see supra note 18), most modern

scholars distinguish the two. 

30. See Sunstein, supra note 29, at 748 n.26 (“Consider the statement: ‘Abortion is murder,’

a statement that in the abstract, could be intended and received as a literal truth, a metaphor, or an

analogy. If it is a metaphor, we know that the speaker believes that abortion is not literally murder,

but is seeking to cast some light on the subject precisely by departing from literal description.

(‘Holmes was a lion of the law.’ ‘Michael Jordan is God.’) But, if the statement is an analogy, the

speaker is claiming, and should be understood to be claiming, that abortion really is murder in the

relevant respects; there is no acknowledgement that the statement is literally untrue.”). But see

Condello, supra note 29, at 25-26 (noting the “common ground of metaphor and analogy” and

arguing that they share a similar poetic force in the law); DEDRE GENTNER ET AL., Metaphor is Like

Analogy, in THE ANALOGICAL MIND: PERSPECTIVES FROM COGNITIVE SCIENCE 199, 243 (Dedre

Genter et al. eds., 2001) (arguing that metaphors are processed psychologically like analogies).



2023] ARTIS V. DISTRICT OF COLUMBIA 335

analysis31 (indeed, analogies are inherent in the idea of precedent),
metaphors—where the writer is always, in some sense, not saying what they
mean—are viewed more skeptically.

A. Skeptical Views of Metaphor

Traditionally, scholars have distrusted metaphors in legal discourse.
According to this skeptical view, metaphors do not help in the development of
legal meaning or understanding, and their aesthetic and persuasive effects are
misleading deceptions or, at best, entertaining distractions. 

1. Metaphors as Deception.—

“[P]oetry makes nothing happen.”32

Skepticism about figurative language in reasoned discourse has a lengthy
history. In Plato’s Republic, Socrates declares that “there is an ancient feud
between philosophy and poetry,” and Plato famously bans all poets from his ideal
city-state.33 For Plato—who lived in a society where poetry (including theater and
recitations of epic poetry) was understood to contain truthful lessons about
personal conduct and governance—poetry was suspect for two related reasons.
First, poetry is an “imitation” (mimesis) of reality; it is not an examination of
reality itself (much less of the transcendental Truth of the Platonic forms, of
which reality itself is a mere reflection). Poetry is an inaccurate reflection of
reality—or at least less accurate than reason and philosophy. Second, poetry is
actively misleading (“it is capable of corrupting, with few exceptions, even the
good men”) because it elevates emotion, pleasure, and illogic over reason (“if you
admit the honeyed muse, in the form of songs and epic verse, pleasure and pain
will rule in our State instead of law and reason.”)34

This distrust has not disappeared since ancient times.35 As literary theorist
Paul de Man observes, “[m]etaphors, tropes, and figural language in general have
been a perennial problem and, at times, a recognized source of embarrassment for

31. See, e.g., LLOYD L. WEINREB, LEGAL REASON: THE USE OF ANALOGY IN LEGAL

ARGUMENT (2d ed. 2016). But see Brewer, supra note 29.

32. W.H. Auden, In Memory of W.B. Yeats, available at https://poets.org/poem/memory-w-b-

yeats [https://perma.cc/C4ZF-SSRW] (last visited Oct. 2, 2022).

33. PLATO, THE REPUBLIC 575 (Alexander Kerr trans., Charles H. Kerr & Co. 1918). In

Sophist, Plato warned that “a wolf is very like a dog, the wildest like the tamest of animals. But the

cautious man must be especially on his guard in the matter of resemblances, for they are very slippery

things.” PLATO, SOPHIST, in PLATO IN TWELVE VOLUMES, VOL. 12, 231a (Harold N. Fowler trans.,

Harvard Univ. Press; William Heinemann Ltd. 1921), available at http://data.perseus.org/

citations/urn:cts:greekLit:tlg0059.tlg007.perseus-eng1:231a [https://perma.cc/XS5V-DUMY].

34. PLATO, THE REPUBLIC, supra note 33, at 572, 575.

35. See Raymond W. Gibbs Jr. & Josie Siman, How We Resist Metaphors, 13 LANGUAGE AND

COGNIT ION 670 (2021), https://www.cambridge.org/core/journals/language-and-cognition/

article/abs/h ow -w e-resist-m e t a p h o r s / D D C A2 4 2 2 3 5 D E F4 C C 8 B 4 7 8 5 6 7 5 E 8 AE 6 FA

[https://perma.cc/8KXT-5L5Y].



336 INDIANA LAW REVIEW [Vol. 56:329

philosophical discourse and, by extension, for all discursive uses of language.”36

In the legal sphere, the distrust of metaphor is well established. Judge
Cardozo famously warned that “[m]etaphors in law are to be narrowly watched,
for starting as devices to liberate thought, they end often by enslaving it.”3 7 As
Judge Posner opined more recently: “The danger, when judges try to be literary
is not that they will make pompous fools of themselves, though often they will,
or make the worse appear the better cause. It is that they will muddy the law.”38

The skepticism about figurative language is shared by legal formalists and
realists alike.39 For formalists, figurative language distracts from the clarity of
logical reasoning and textual analysis.40 For realists, figurative language obscures
the political, social, or economic realities underlying legal decisionmaking.41

“When the vivid fictions and metaphors of traditional jurisprudence are thought
of as reasons for decisions, rather than poetical or mnemonic devices for
formulating decisions reached on other grounds, then the author, as well as the
reader, of the opinion or argument, is apt to forget the social forces which mold
the law and the social ideals by which the law is to be judged.”42

2. Metaphors as Ornamentation.—

“Perhaps ‘tis pretty to force together 
Thoughts so all unlike each other”43

Another skeptical view of metaphors in legal discourse is that—while they
may not be part of legal reasoning, per se—they serve an ornamental and thus a
persuasive purpose. Since persuasion is part of the development of the law, this
could be considered a positive feature, enabling more persuasive writing and
communication.44 But more often than not this version remains wary of

36. Paul de Man, The Epistemology of Metaphor, 5 CRITICAL INQUIRY 13, 13 (1978).

37. Berkey v. Third Ave. Ry. Co., 155 N.E. 58, 61 (N.Y. 1926); noted in Wallace v. Jaffree,

472 U.S. 38, 107 (1985) (Rehnquist, J., dissenting); Phillips v. Washington Legal Found., 524 U.S.

156, 182 (1998) (Souter, J., dissenting).

38. RICHARD A. POSNER, LAW AND LITERATURE 357 (Harvard Univ. Press 3d ed. 2009).

39. Robert L. Tsai, Fire, Metaphor, and Constitutional Myth-Making, 93 GEO. L.J. 181, 187

(2004).

40. Id.

41. Id.

42. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L.

REV. 809, 812 (1935).

43. Samuel Taylor Coleridge, Christabel (1800), available at https://www.poetryfoundation.

org/poems/43971/christabel [https://perma.cc/6VZM-LZW3] (last visited Oct. 5, 2022).

44. See, e.g., Tsai, supra note 39, at 190-95 (discussing the use of metaphor as part of the

performative aspects of legal opinions); Benjamin L. Berger, Trial by Metaphor: Rhetoric,

Innovation, and the Juridical Text, 39 CT. REV.: J. AM. JUDGES ASS'N 30, 30 (Oct. 2002),

https://digitalcommons.unl.edu/ajacourtreview/133 [https://perma.cc/GG6M-GL9N] (“the judicial

opinion is not just a reflection of an opinion and a representation of authority, but also a device that

must persuade while maintaining the legitimacy of the legal system”).



2023] ARTIS V. DISTRICT OF COLUMBIA 337

metaphor’s seductive ability to beguile.
Like the view of metaphor as deception, this view has a long history outside

of the law. A classic example is found in John Locke’s An Essay Concerning
Human Understanding, in the chapter entitled “Of the Abuse of Words.”45

There—after first conceding that figurative language is useful “in discourses
where we seek rather pleasure and delight than information and
improvement”—Locke declares that “if we would speak of things as they are”:

all the artificial and figurative application of words eloquence hath
invented, are for nothing else but to insinuate wrong ideas, move the
passions, and thereby mislead the judgment; and so indeed are perfect
cheats: and therefore . . . they are certainly, in all discourses that pretend
to inform or instruct, wholly to be avoided; and where truth and
knowledge are concerned, cannot but be thought a great fault, either of
the language or person that makes use of them. . . .

It is evident how much men love to deceive and be deceived, since
rhetoric, that powerful instrument of error and deceit, has its established
professors, is publicly taught, and has always been had in great
reputation: and I doubt not but it will be thought great boldness, if not
brutality, in me to have said thus much against it. Eloquence, like the fair
sex, has too prevailing beauties in it to suffer itself ever to be spoken
against. And it is in vain to find fault with those arts of deceiving,
wherein men find pleasure to be deceived.46

This view recognizes, but bemoans, the attractions of figurative language,
viewing it “as a sort of happy extra trick with words . . . a grace or ornament or
added power of language”47—to be distrusted, like an attractive member “of the
fair[er] sex.”48

This skepticism about the ornamental function of metaphorical language is
found in legal-writing guides which advocate using metaphors and figurative
language sparingly for their persuasive effect, but caution against their overuse.
For example, in Point Taken: How to Write Like the World’s Best Judges, Ross
Guberman collects choice examples of metaphors and similes from judicial
opinions in a section entitled “The Words: ‘Nice-to-Haves’ in Style’” (by contrast
with the previous section entitled “The Words: Style Must Haves,” which covers
syntactical strategies aimed at clarity and readability).49  When it comes to

45. JOHN LOCKE, Of the Abuse of Words, in AN ESSAY CONCERNING HUMAN UNDERSTANDING

bk.3, ch.X, ¶34 (1690). 

46. Id.

47. See RICHARDS, supra note 28, at 90.

48. LOCKE, supra note 45, at bk.3, ch.10, ¶34. Locke’s metaphoric comparison of rhetoric and

its beauties with “the fair sex” is not only ironic. It underscores how he aligns literal language and

plain speech with masculine rationality and figurative language and eloquence with the siren song

of feminine seduction.

49. ROSS GUBERMAN, POINT TAKEN: HOW TO WRITE LIKE THE WORLD’S BEST JUDGES 157,



338 INDIANA LAW REVIEW [Vol. 56:329

metaphors and other figurative linguistic devices, Guberman advises that such
devices are “nonessential ‘nice to haves’ that make an opinion not just easy and
even enjoyable to read, but provocative and even enduring,” but cautions that
“[l]ess is more, and for most opinions, you’ll do well to include just a single burst
of creativity drawn from just one of the techniques in this section.”50  

B. Favorable Views of Metaphor

There are more favorable views of the function of figurative language in legal
discourse. These views reject the idea that metaphor is only deceptive or
ornamental. They posit instead that metaphors help shape mental concepts and
thus help formulate legal ideas. Metaphor is not only “a peculiar or aberrant form
of naming things” after other things but also “a potentially logical act of
predication attributing a [meaningful] resemblance.”51 The idea is that metaphors
are inherent in human cognition and allow us to consider ideas and concepts in
ways that we could not conceive of without them.

To explain how this happens, it helps to examine further how metaphors
work, particularly the relationship between the tenor and the vehicle. As explained
above, metaphors do not make literal sense because the tenor and vehicle are
unrelated. They come from different contexts. As I.A. Richards put it, a metaphor
is a “transaction between contexts.”52 It is that transaction that enables new
meanings and implications to be created.

One influential way of understanding that transaction between contexts is
based on the distinction between metaphor and metonymy.53 Metonymy is another
kind of figurative language which entails calling something by the name of
something associated with it: using “ears” to mean “listening attention” in “Lend
me your ears;” calling the judiciary “the bench”; or calling the presidency “the
White House.”54 

235 (2015) (Part five The Words: “Nice-to-Haves” in Style / It Is What It Is: Metaphors).

50. Id. at 163, 237.

51. PETER GOODRICH, LEGAL DISCOURSE: STUDIES IN LINGUISTICS, RHETORIC AND LEGAL

ANALYSIS 105 (1987).

52. RICHARDS, supra note 28, at 94.

53. See ROMAN JAKOBSON, The Metaphoric and Metonymic Poles, in ROMAN JAKOBSON &

MORRIS HALLE, FUNDAMENTALS OF LANGUAGE (1956), reprinted in CRITICAL THEORY SINCE PLATO

1041-44 (Hazard Adams ed., Revised ed. 1992). The structural distinction between metaphor and

metonymy is based on the work of psychological linguist and literary critic Roman Jakobson. Id.

Jakobson understood metaphor and metonymy not just as rhetorical tropes but as the fundamental

features of language and cognition. Id. He observed that when children were asked to free associate

one word based on a prompt, they tended to provide a word that was either a metaphoric substitute

for or metonymic association with the prompt. Id. at 1042. He also noted that different varieties of

aphasia (the psychological syndrome of inability to speak) seemed to be impairments of either the

metaphoric associative faculty or the metonymic associative faculty. Id. at 1041.

54. As explained further below, metonymy can be considered a type of metaphor, but it can

also be distinguished from metaphor, because metonymy is built on a pre-existing association

between the things being compared, whereas metaphor is based on creating a new comparison



2023] ARTIS V. DISTRICT OF COLUMBIA 339

Metonymy differs from metaphor because it describes one thing in terms of
another thing with which it is already associated. Unlike metaphor, which brings
together things from unrelated contexts, metonymy “accomplishes its transfer of
meaning on the basis of associations that develop out of [i.e., within] specific
contexts.”55 For example, referring to a monarch as the “head of state” is a
metaphor based on a comparison between the political and bodily contexts.
Referring to a monarch as “the crown” is a metonymy, based on the pre-existing
association between monarchs and the crowns they wear.

The relationship between metaphor and metonymy is often understood
through a spatial analogy.56 Metaphor is said to operate along a vertical axis,
because it highlights similarities between two things (the tenor and vehicle) from
two different (vertically distinct) contexts. Metonymy is said to operate on a
horizontal axis, based on a pre-existing (horizontal) chain of associations between
related things within the same context.57

This basic model explains how metaphors can enable new concepts. By
creating a connection between things in different contexts, metaphor enables
writers and readers to think of one thing (the tenor) in terms of the metonymic
associations that apply to the other thing (the vehicle). The metaphor brings along
the metonymic associations from one context to the other.58

1. Metaphors as Concepts.—

“[P]oetry is not a luxury. . . . Poetry is the way we help give name to the
nameless so it can be thought.”59

One favorable view of metaphor understands it as a tool for making abstract
concepts more comprehensible. This conceptual view posits that human beings
understand unfamiliar, abstract concepts through metaphors comparing them to
familiar, concrete objects and relations. Because so many of the concepts that are
important to us are either abstract or not clearly delineated in our experience
(emotions, ideas, time, etc.), we need to get a grasp on them by means of other
concepts that we understand in clearer terms (spatial orientations, physical
objects, etc.).60  Metaphor “carries the reader from a world of common objects,

between unassociated things. See id. 

55. MCLAUGHLIN, supra note 17, at 83.

56. See JAKOBSON, supra note 53, at 1041-44.

57. Id.

58. The word “metaphor” is derived from the Greek word “metaphora,” meaning “a transfer,”

or literally “a carrying over” or “translation.” See ANDREAS T. ZANKER, GREEK AND LATIN

EXPRESSIONS OF MEANING: THE CLASSICAL ORIGINS OF A MODERN METAPHOR 164-90 (2017),

available at http://books.openedition.org/chbeck/1609 [https://perma.cc/ZXJ9-SGP9].

59. AUDRE LORDE, Poetry Is Not A Luxury, reprinted in SISTER OUTSIDER: ESSAYS AND

SPEECHES (1984).

60. GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY 115 (Univ. of Chi. Press

1980).



340 INDIANA LAW REVIEW [Vol. 56:329

and their attendant qualities, to the realm of ideas.”61

Scholars from literary theorists to linguists to cognitive scientists have
theorized that this conceptual metaphorical thinking—using concrete, physical
metaphors to understand abstract concepts—is an inherent part of human
cognition.62 Cognitive scientists believe that “human thought is grounded in
physical experience and extended by means of idealized cognitive models and
metaphoric projections.”63 Lakoff and Johnson have famously found that these
“conceptual metaphors” are “one of the central devices” we use to engage in
abstract thought.64 A conceptual metaphor “involves a conceptual mapping from
a highly structured source domain, typically some sensory-motor domain, to a less
highly structured target domain, typically some abstract notion, such as justice,
freedom, or mind.”65 Or, in traditional rhetorical terms, we use metaphors about
physical objects (the vehicle) to conceptualize abstract ideas (the tenor).66 Or, in
the linguistic terms introduced above, we use metonymic associations from a
concrete context to conceptualize ideas from an abstract context. 

Relatedly, through clinical experiments and observations of childhood
development, psychologists have identified widely held “primary metaphors”
whereby abstractions are understood through physical, embodied experiences like:
“Affection Is Warmth” (“I received a warm reception in Norway”); “Bad Is
Stinky” (“Something smells fishy with this contract”); and “Knowing Is Seeing”
(“I finally see the answer to our problem”).67 These primary conceptual metaphors
seem to be unconscious and widely shared within a given cultural context.68 Then,
“[t]hrough various types of blending and composition” of different conceptual
metaphors, “we develop vast coherent systems of metaphorically defined
concepts.”69 Ultimately, “all of the key concepts in [a host of] disciplines
[including law] are defined by multiple, often inconsistent, metaphors, and we
reason using the internal logic of those metaphors.”70 Such conceptual metaphors

61. Berger, supra note 44, at 34.

62. See, e.g., RICHARDS, supra note 28, at 91 (“[H]istorians of language have long taught that

we can find no word or description for any of the intellectual operations which, if its history is known,

is not seen to have been taken, by metaphor, from a description of some physical happening.”);

JAKOBSON, supra note 53; JAMES GEARY, I IS AN OTHER 23-28 (2011) (describing fundamental

physical metaphors); id. at 35 (“Pattern recognition is the most primitive form of analogical

reasoning, part of the neural circuitry for metaphor.”); see also Steven L. Winter, The Metaphor of

Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371, 1384 nn. 70-74 (1988).

63. Winter, supra note 62, at 1384-85; see also LAKOFF & JOHNSON, supra note 60, at 14-19.

64. Mark L. Johnson, Mind, Metaphor, Law, 58 MERCER L. REV. 845, 856 (2007).

65. Id.

66. See, e.g., Winter, supra note 62, at 1388-89 (explaining how metaphor enables us to

conceptualize the abstract concept of legal standing (the tenor) through the image of a litigant

physically standing to be heard in a courtroom (the vehicle)).

67. Johnson, supra note 64, at 859-63.

68. Id. at 863-64.

69. Id. at 864.

70. Id. at 865.



2023] ARTIS V. DISTRICT OF COLUMBIA 341

are so ingrained in our thought processes that we often do not think of them as
metaphors at all. They seem like literal statements or dead metaphors, until we
pay close attention and recognize the associations bound up with them.

The idea of cognitive conceptual metaphors is not foreign to legal theory.
Over 100 years ago, Wesley Hohfeld observed that “as regards legal
terminology,” “many of our words were originally applicable only to physical
things; so that their use in connection with legal relations is, strictly speaking,
figurative or fictional.”71 As others have put it, because “legal thought often
operates in the realm of the abstract,” legal writing often turns to metaphors “to
bridge the abstract and concrete, using elements of similarity to effect a seemingly
natural appeal to common sense, and to mold the future development of
jurisprudence.”72

Many famous legal metaphors seem to follow this pattern: the “fruit of the
poisonous tree,” the “wall of separation between church and state,” and the
“chilling effect” of various legal rules.73 Scholars have pointed out how concrete
physical metaphors underlie foundational legal understandings like property as
a bundle of sticks,74 tort law as a lottery,75 intellectual property,76 and standing to
sue.77 And, while the meanings of such concepts are now generally fixed and
accepted, their initial formation enabled and guided a certain type of
understanding of otherwise abstract ideas.78 

2. Metaphors as Imagination.—

“[I]maginary gardens with real toads in them”79

A somewhat different favorable view of metaphoric language in legal
discourse is that it enables understanding not by simplifying abstract ideas into

71. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial

Reasoning, 23 YALE L.J. 16, 24 (1913) (citation omitted). For Hohfeld, this figurative basis caused

“much of the difficulty” with legal terminology, and he sought to strip it away when he found it

misleading. Id.

72. Berger, supra note 44, at 34, 30.

73. See generally HAIG A. BOSMAJIAN, METAPHOR AND REASON IN JUDICIAL OPINIONS (1992).

74. See, e.g., Anna di Robilant, Property: A Bundle of Sticks or a Tree?, 66 VAND. L. REV. 869

(2013).

75. See, e.g., Timothy D. Lytton et al., Tort as a Litigation Lottery: A Misconceived Metaphor,

52 B.C. L. REV. 267 (2011).

76. See Michael J. Madison et al., Constructing Commons in the Cultural Environment, 95

CORNELL L. REV. 657, 673 n.53 (2010).

77. Winter, supra note 62, at 1371.

78. James E. Murray, Understanding Law as Metaphor, 34 J. LEGAL EDUC. 714 (1984); see

generally Linda L. Berger, What Is the Sound of a Corporation Speaking? How the Cognitive Theory

of Metaphor Can Help Lawyers Shape the Law, 2 J. ASS’N LEGAL WRIT ING DIRS. 169 (2004);

BOSMAJIAN, supra note 73.

79. Marianne Moore, Poetry (1919), available at https://poets.org/poem/poetry [https://perma.

cc/QU4Y-WE7P].



342 INDIANA LAW REVIEW [Vol. 56:329

something concrete but by complicating ideas and freeing thinking. According to
this imaginative view of metaphor, the tension found in every metaphor—the
ongoing mismatch between the tenor and the vehicle—makes metaphorical
language inescapable and invaluable in legal discourse.80

Like the conceptual view, this view understands metaphor as a fundamental
aspect of human cognition. But, while the conceptual view focuses on
conventional metaphors that structure everyday thought, the imaginative view
focuses on novel metaphors that enable new ways of thinking.81 Unlike the
conceptual view—that conventional metaphors conform new ideas to pre-existing
conceptual patterns in a Procrustean fashion—the imaginative view traces the
power of metaphor to the fact that the fit between new and old is never quite right.
The two ideas being metaphorized to one another always exceed and conflict with
one another. And that conflict spurs imagination, enabling us to conceive of new
concepts.

According to philosopher Paul Ricouer, metaphors give rise to new ways of
thinking through a simultaneous two-step process that he calls “split reference.”82

First, metaphors enact “a suspension and seemingly an abolition of the ordinary
reference attached to descriptive language.”83 Then they create a “second-order”
reference, “an indirect reference built on the ruins of the direct reference.”84 That
is to say, by asserting that two different things are alike (which is not literally
true), a metaphor requires the reader to suspend literal reasoning and search for
another way for the metaphor to makes sense. But—unless the metaphor has lost
all trace of its original meaning and become a dead metaphor—some trace of the
original tension, the improper fit between the tenor and vehicle remains. That
conceptual tension opens up a space for new ways of thinking about an idea and
the (always incomplete) resolution of that tension results in a new way of
thinking. 

One sign of the power of metaphors to form new concepts is the fact that
novel metaphors seem to be particularly prevalent in judicial opinions when the
law is changing, when it is shifting registers. “A critical component of the judge’s
linguistic toolbox is metaphor and . . . this device is most necessary and effective
at these turning points in law.”85

80. See Murray, supra note 78, at 715-16.

81. Although they focus mostly on conceptual metaphors discussed above, Lakoff and Johnson

also recognize the effect of novel metaphors. LAKOFF & JOHNSON, supra note 60, at 157-58 (“New

metaphors, like conventional metaphors, can have the power to define reality. They do this through

a coherent network of entailments that highlight some features of reality and hide others. The

acceptance of the metaphor, which forces us to focus only on those aspects of our experience that it

highlights, leads us to view the entailments of the metaphor as being true. Such ‘truths’ may be true,

of course, only relative to the reality defined by the metaphor.”).

82. Paul Ricoeur, The Metaphorical Process as Cognition, Imagination, and Feeling, 5

CRITICAL INQUIRY 143, 153 (1978).

83. Id.

84. Id.

85. Berger, supra note 44, at 30.



2023] ARTIS V. DISTRICT OF COLUMBIA 343

An even more forceful version of this imaginative view is articulated by Paul
de Man. As noted above, de Man recognized that figurative language is a
“perennial problem” and “source of embarrassment” for discursive
communication.86 For de Man, metaphors and figurative language are
inescapable.87 They crop up in any attempt at communicative discourse, because
figural language underlies all attempts at communication—and not just in the
conceptual sense where established physical metaphors structure our thinking, and
not just in Ricouer’s sense where novel metaphors simultaneously undermine
literal sense and give rise to new meanings.88 For de Man, that is because
figurative language always evades authorial control—and discourses that try to
eliminate figurative language or to cabin it by speaking rationally inevitably
reproduce the very metaphoric processes they seek to avoid.89

Thus, for example, when de Man reads the passage from Locke’s “Of the
Abuse of Words” quoted above,90 he observes that “[n]othing could be more
eloquent than this denunciation of eloquence,” and he traces out the passage’s
extended metaphor likening figurative language to a seductive, misleading
woman.91 He concedes that such an obvious extended metaphor is unlikely to
mislead readers.92 But he goes on to identify more subtle metaphors throughout
Locke’s essay—language as a pipe or conduit, translation as motion, etc.—and
to observe that “one may wonder whether the metaphors illustrate a cognition or
if the cognition is not perhaps shaped by the metaphors.”93 As he (metaphorically,
of course) explains it:

We have no way of defining, of policing, the boundaries that separate the
name of one entity from the name of another; tropes are not just
travellers, they tend to be smugglers and probably smugglers of stolen
goods at that. What makes matters even worse is that there is no way of
finding out whether the do so with criminal intent or not.94

Thus, for de Man, not only is metaphor an inevitable part of communication and
conception (à la Lakoff and Johnson), and not only does it open up new possible
conceptions (à la Ricouer), but we have little control, try as we might, over those
new conceptions. Metaphors—which, again, we cannot avoid—bring over
metonymic associations from one context to another, whether we want them to or
not.

Ultimately, for de Man, any Lockean attempt to “speak of things as they are”
becomes a discussion of how we speak of them: “not a question of ontology, of

86. de Man, supra note 36, at 13.

87. Id.

88. Id.

89. Id. at 23-29.

90. LOCKE, supra note 45. 

91. de Man, supra note 36, at 15-16.

92. Id. at 16.

93. Id. at 16.

94. Id. at 19.



344 INDIANA LAW REVIEW [Vol. 56:329

things as they are, but of authority, of things as they are decreed to be.”9 5

Metaphors both enable us to imagine new ideas and also shape and reveal how we
do that imaginative work.

II. READING ARTIS V. DISTRICT OF COLUMBIA

A. Legal Argument in Artis

Turning to the Artis opinions, let us begin by focusing only on their legal and
interpretive arguments, leaving aside (as much as possible) the Justices’ use of
metaphorical language.

In 1990, Congress adopted 28 U.S.C. § 1367 – Supplemental Jurisdiction by
adapting the judge-made doctrines of pendent and ancillary jurisdiction to grant
federal district courts jurisdiction over certain state law claims.96 Under subsection
(a) of § 1367, district courts have supplemental jurisdiction to hear state law
claims if they “form part of the same case or controversy” as a claim with federal
jurisdiction.97 Thus, when one incident gives rise to both state law claims and
federal law claims, district courts may usually exercise jurisdiction over both.
However, under § 1367(c), district courts may decline to exercise supplemental
jurisdiction in certain circumstances, such as when the state-law issues are more
substantial or complicated than the federal-law issues or, most commonly, when
the federal-law claims have been dismissed.98

When district courts decline to exercise supplemental jurisdiction, plaintiffs
are free to refile their state-law claims in state court.99 But, if the state-law statute
of limitations had expired while a plaintiff’s claims were pending in federal court,
then those claims could be time-barred.100 To avoid this unfairness, Congress
included a tolling provision in § 1367(d): 

The period of limitations for any claim asserted under subsection (a), and
for any other claim in the same action that is voluntarily dismissed at the
same time as or after the dismissal of the claim under subsection (a), shall
be tolled while the claim is pending and for a period of 30 days after it is
dismissed unless State law provides for a longer tolling period.101

In Artis, the plaintiff Stephanie Artis was a health inspector employed by the
District of Columbia.102 Thirteen months after she was fired, she sued the District
in federal court.103 She alleged a violation of Title VII of the Civil Rights Act of

95. Id. at 15, 19.

96. Judicial Improvements Act of 1990, Pub. L. 101-650, § 310, 104 Stat. 5089, 5113-14

(codified as amended in scattered sections of 28 U.S.C.).

97. 28 U.S.C. § 1367(a).

98. 28 U.S.C. § 1367(c).

99. See Artis v. District of Columbia, 138 S. Ct. 594, 598-99 (2018).

100. Id. at 599 (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 352 (1988)).

101. 28 U.S.C. § 1367(d).

102. Artis, 138 S. Ct. at 599.

103. Id. 



2023] ARTIS V. DISTRICT OF COLUMBIA 345

1964,104 a federal-law claim over which the federal court had federal-question
jurisdiction.105 And she alleged three related violations of D.C. law (the D.C.
Whistleblower Act,106 the D.C. False Claims Act,107 and wrongful termination
against public policy under D.C. common-law), which were state-law claims over
which the federal court had supplemental jurisdiction.108 When she first brought
suit, Artis had almost two years left on the three-year state-law statutes of
limitations.109 Two and a half years later, the federal court granted summary
judgment against Artis on her federal-law claim and then dismissed the state-law
claims.110 Fifty-nine days after that, Artis re-filed her state-law claims in the D.C.
Superior Court.111 But the D.C. Superior Court held, and the D.C. Court of
Appeals affirmed, that her claims were time barred because § 1367(d) only gave
her thirty days to refile in state court, rejecting her argument that the word
“tolled” in § 1367(d) meant that the limitations period had been paused while her
claims were in federal court.112

The U.S. Supreme Court granted certiorari to resolve a conflict between two
readings of the § 1367(d) tolling provision: the D.C. courts’ “grace period”
reading (adopted by the high courts of D.C., California, and the Northern Mariana
Islands) under which plaintiffs have thirty days to re-file their claims in state court
after they have been dismissed from federal court; and Stephanie Artis’ “stop-the-
clock” reading (adopted by the high courts of Maryland and Minnesota, and by
the Sixth Circuit) under which plaintiffs have thirty days plus the time that was
left on the statute of limitations when they first filed to re-file their claims in state
court after they have been dismissed from federal court.113 As Justice Ginsburg
paraphrased it:

Does the word “tolled,” as used in § 1367(d), mean the state limitations
period is suspended during the pendency of the federal suit; or does
“tolled” mean that, although the state limitations period continues to run,
a plaintiff is accorded a grace period of 30 days to refile in state court
post dismissal of the federal case?114

104. Pub. L. No. 88-352, 78 Stat. 253 (codified as amended at 42 U.S.C. § 2000e to 2000e-17).

105. Artis, 138 S. Ct. at 599.

106. D.C. CODE § 1-615.54 (2001).

107. Id. § 2-381.04.

108. Artis, 138 S. Ct. at 599. For purposes of supplemental jurisdiction, claims under District

of Columbia, Puerto Rico, and territorial laws are considered state-law claims. 28 U.S.C. § 1367(e).

109. Artis, 138 S. Ct. at 600. Two of Artis’ state-law claims had three-year statutes of

limitations; her whistleblower claim had a one-year statute of limitations, but the parties disputed

when it began. Id. at n.2.

110. Id. at 599-600. Federal courts may decline to exercise supplemental jurisdiction over state

law claims in some situations, including when “the district court has dismissed all claims over which

it has original jurisdiction.” 28 U.S.C. 1367(c).

111. Artis, 138 S. Ct. at 600.

112. Id.; see 28 U.S.C. 1367(d).

113. Artis, 138 S. Ct. at 600 n.3.

114. Id. at 598.



346 INDIANA LAW REVIEW [Vol. 56:329

In her majority opinion, Justice Ginsburg adopted the first reading, holding
that “toll” means “pause” in this context, and thus, the state statute of limitations
period is suspended during the pendency of a federal suit, leaving plaintiffs
whatever time remained on the state statute of limitations plus the thirty-day grace
period to refile their claims in state court.115 She called this the “stop the clock”
reading.116

In his dissent, Justice Gorsuch would have held that “toll” meant “take away”
or “bar” in this context and thus that §1367(d) should remove the effect of the
state statute of limitations rather than pause it, leaving plaintiffs only the thirty-
day grace period to refile their claims in state court.117 He called this the “grace
period” approach.118

Both opinions begin with definitions of the word “toll.” Justice Ginsburg
relies on the ordinary legal usage of “toll” and “tolled” in “the context of a time
prescription like § 1367(d).”119 She quotes Black’s Law Dictionary which states
that toll, “when paired with the grammatical object ‘statute of limitations,’ means
‘to suspend or stop temporarily.’”120 She cites federal and state statutes employing
that stop-the-clock reading121 and notes that neither the District of Columbia
courts nor the dissent identify a single a federal statute using “toll” or “tolled” to
mean “something other than ‘suspended,’ or ‘paused,’ or ‘stopped.’”122 She
collects Supreme Court opinions showing that her reading and the stop-the-clock
approach are “generally applied in federal courts.”123

Justice Gorsuch uses general-purpose dictionaries defining “toll” to mean
things like “bar, defeat, [or] annul” and “to take away; to vacate; to annul” to
reason that “when a statute speaks of tolling a limitations period it can, naturally
enough, mean either” pausing or eliminating the statute of limitations.124 Gorsuch
points to Chardon v. Fumero Soto as a case where the Court recognized both
possible understandings of the term “tolling effect.”125 He argues that both the

115. Id. 

116. Id.

117. Id. at 608-09 (Gorsuch, J., dissenting).

118. Id. at 609.

119. Id. at 601 (majority opinion).

120. Id. (quoting BLACK’S LAW DICTIONARY 1488 (6th ed. 1990)).

121. Artis, 138 S. Ct. at 601, n.4.

122. Id. at 602-03.

123. Id. at 601-02 (citing Chardon v. Fumero Soto, 462 U.S. 650, 652 n.1 (1983); Am. Pipe &

Constr. Co. v. Utah, 414 U.S. 538, 554, 560-61 (1974); CTS Corp. v. Waldburger, 134 S. Ct. 2175,

2183 (2014); United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (per curiam)). Justice Ginsburg did

acknowledge a single Supreme Court case, Hardin v. Straub, “characterized a state statute providing

a one-year grace period as ‘tolling’ or ‘suspend[ing]’ the limitations period ‘until one year after the

disability has been removed.’” Id. at 603 (quoting Hardin v. Straub, 490 U.S. 536, 537 (1989))

(alterations in original). But she described that “atypical use” of “tolling” as “a feather on the scale

against the weight” of the many decisions using the stop-the-clock reading. Id.

124. Id. at 609 (Gorsuch, J., dissenting) (citations omitted).

125. Id.



2023] ARTIS V. DISTRICT OF COLUMBIA 347

stop-the-clock and the grace-period approaches were used at common law, but for
different things.126 He posits that that the stop-the-clock approach was mostly used
when the “plaintiff was prevented from coming to court due to some disability,”
while the grace-period approach was “commonly used in cases where, as here, the
plaintiff made it to court in time but arrived in the wrong court and had to refile
in the right one.”127 According to Gorsuch, the grace-period approach finds its
“roots in a common law rule known as the ‘journey’s account’” which, in 17th
century England, gave parties who had filed in the wrong court the number of
days they needed to travel to the correct court.128

Justices Ginsburg and Gorsuch both also consider statutory context. Ginsburg
rejects Gorsuch’s (and the District of Columbia Court of Appeals’) view that
“tolled” here means to “remove or take away an effect,” just as it would mean
when “tolling any other fact, right, or consequence”129 because the object of the
term here is a statute of limitations, noting that the meaning of “tolled” would
likewise be different if its object were “highway traveler” or “bell.”130 She asserts
that the dissent’s reading would entail a strained interpretation of “period of
limitations” to mean “the effect of the period of limitations as a time bar.”131 And
she finds that reading renders the first part of the tolling provision (“while the
claim is pending”) superfluous, since it would always be a thirty-day grace
period.132

Justice Gorsuch also considers statutory context, focusing on § 1367’s two
uses of the term “toll” in the sentence “shall be tolled while the claim is pending
and for a period of 30 days after it is dismissed unless State law provides for a
longer tolling period.”133 He argues that “toll” must have the same meaning in
both instances.134 Therefore—since he believes that the latter usage, the state law
“tolling period,” is normally a grace period granting a fixed number of days to
refile (modeled on the “journey’s account”)—he reasons that the former must also
be understood to refer to the grace-period approach.135

Both opinions assert that adopting the other’s reading will cause absurd
outcomes. Justice Ginsburg says the grace-period reading could result in an
“absurdity” in cases where the state-law statute of limitations has already run out
before the plaintiff files in federal court because, under that reading, filing in

126. Id.

127. Id. at 609-10. Justice Ginsburg rejected this distinction and pointed to federal and state

statutes applying stop-the-clock tolling in situations that “do not involve ‘disabilities,’” but rather,

“like § 1367(d), they involve claims earlier commenced in another forum.” Id. at 601 n.4 (majority

opinion).

128. Id. at 610 (Gorsuch, J., dissenting).

129. Id. at 603 (majority opinion).

130. Id. at 603-04.

131. Id. at 604.

132. Id.

133. Id. at 610 (Gorsuch, J., dissenting) (quoting 28 U.S.C. § 1367(d)).

134. Id.

135. Id. at 610-11.



348 INDIANA LAW REVIEW [Vol. 56:329

federal court would remove the bar and then give the plaintiff an extra thirty days
to refile in state court after the claim was dismissed from federal court.136 She
rejects the argument that the thirty-day grace period would be inconsequential in
many cases, since it would be dwarfed by the time remaining on the state statute
of limitations.137 She explains that the thirty-day grace period will still be useful
when the original claim was filed near the end of limitations period, and that it is
“not unusual in stop-the-clock statutes” to “add[ ] a brief span of days to the
tolling period.”138

Justice Gorsuch offers his own set of absurd outcomes for the stop-the-clock
reading, based on his view that, because the tolling period applies “unless State
law provides for a longer tolling period,” courts would have to compare the state’s
grace period to the time the case spent in federal court plus thirty days.139 Justice
Ginsburg calls those circumstances “extraordinary” and “not presented by this
case,” explaining that the more natural comparison is between the time the
plaintiff would have to refile under the applicable state law and under
§ 1367(d).140

Justice Ginsburg also considers and rejects the argument that Congress
adopted the grace-period approach from another source. She disagrees with the
D.C. Court of Appeals’ conclusion that Congress had “embraced an ALI
recommendation” to provide a thirty-day grace period, noting that Congress used
different language, expressly providing for tolling, whereas the ALI had proposal
had not.141 

Justice Gorsuch does not argue that Congress adopted the ALI grace-period
model. Instead, he pays particular attention to what he calls “contextual clues”
about what Congress was doing when it enacted § 1367(d).142 By “context” he
does not mean the legislative history or the historical context in 1990 when the
statute was written; he means the interpretive assumption that Congress knows
and legislates against the background of the common law.143 Accordingly,
Gorsuch argues that the Court should assume that, when it enacted § 1367(d),
Congress imported the common-law and state-law grace-period and “journey’s
account” approaches he identified earlier.144 Justice Ginsburg, however, rejects an
approach based on the “ancient common-law principle of ‘journey’s account’,”

136. Id. at 603-04 (majority opinion).

137. Id. at 605.

138. Id. at 605 (noting a number of federal statutes that add additional days after a tolling period

has ended). She adds that the additional protections of § 1367(d)’s final phrase—“unless State law

provides for a longer tolling period”—would likewise help plaintiffs who filed near the end of the

state statute of limitations, if the state provided a longer period to refile. Id. at 606 (citing state statutes

providing for an additional three years to refile, or for the statute of limitations to “run[ ] anew”).

139. Id. at 610-14 (Gorsuch, J., dissenting).

140. Id. at 606 n.12 (majority opinion).

141. Id. at 604-05.

142. Id. at 610, 613-14 (Gorsuch, J., dissenting).

143. Id. at 613-14.

144. Id.



2023] ARTIS V. DISTRICT OF COLUMBIA 349

noting that there is no indication that the 101st Congress in 1990 “had any such
ancient law in mind when it drafted § 1367(d).”145

Each Justice also considers whether their preferred reading would pose a
constitutional problem by violating the Necessary and Proper Clause, Art. I, § 8,
cl. 18, or principles of federalism.146 Justice Gorsuch argues that it was neither
necessary nor proper for Congress to adopt the stop-the-clock approach because
it serves no identifiable federal interest not sufficiently addressed by the grace-
period approach.147 And he argues that the stop-the-clock approach intrudes too
much on states’ “traditional interests” in controlling the “appropriate lifespan of
state law claims.”148

Justice Ginsburg turns to precedent and practical considerations to refute
these constitutional concerns. She explains that Jinks v. Richland County already
held that § 1367(d) did not violate the Necessary and Proper Clause because
tolling was necessary and proper to effectuate Congress’s power to create inferior
federal courts.149 She rejects the dissent’s view that the Court must adopt the
grace-period reading because it would intrude less on states’ sovereignty, pointing
out that “both devices are standard, off-the-shelf means of accounting for the fact
that a claim was timely pressed in another forum,” and that “[r]equiring Congress
to choose one over the other would impose a tighter constraint on Congress’
discretion” than the Court had ever imposed before.150 Moreover, she explains that
any threat to state sovereignty “may be more theoretical than real” because, if the
Court adopted the grace-period rule, “cautious plaintiffs” would just file parallel
cases in federal and state court and then ask the state court to hold one in
abeyance while the federal case was pending, thereby increasing litigation
expenses and cluttering state court dockets.151

*    *    *

In sum, if one leaves aside the metaphorical and figurative language, Artis
addresses a technical, procedural question of how to calculate the time remaining
on a statute of limitations. Practically speaking, such time limit–calculation
questions are the kind of questions where courts and litigants benefit most from
clarity.152 Regardless of which reading of the tolling provision was adopted,
having a bright line rule about how to do the calculation would benefit everyone.

145. Id. at 605 n.11 (majority opinion).

146. Id. at 606-08; id. at 614-17 (Gorsuch, J., dissenting).

147. Id. at 615-16.

148. Id. at 616-17.

149. Id. at 606-07 (majority opinion) (citing Jinks v. Richland Cnty., 538 U.S. 456, 462 (2003)).

150. Id. at 607.

151. Id.

152. See Wilson v. Garcia, 471 U.S. 261, 275, 275 n.34 (1985) (describing the risks and costs

of “uncertainty in the applicable statute of limitations”); see also Young v. United States, 535 US 43,

47 (2002) (noting the “basic policies [furthered by] all limitations provisions: repose, elimination of

stale claims, and certainty about a plaintiff’s opportunity for recovery and a defendant’s potential

liabilities”) (alternation in original).



350 INDIANA LAW REVIEW [Vol. 56:329

But the majority and dissent are unable to reach a practical agreement about
the question. Instead, they disagree about everything from which dictionaries to
use to the gravity of constitutional issues at stake. And the two opinions seem to
be talking past one another. Each points to past usages of the term “toll” that seem
to support their readings and minimizes the other’s examples. Each points out the
supposed advantages of its own reading and the supposed absurdities of the
other’s. Especially given that Congress could amend § 1367 and the states could
amend their statutes of limitations if they disagreed, why don’t the Justices reach
a practical compromise? Because there is another dispute going here, at a
rhetorical level—one that depends not on what Justices Ginsburg and Gorsuch
says but on how they say it. Each Justice’s metaphorical choice bespeaks a
different understanding of the nature of lawmaking and the role of courts in
interpreting laws.

B. Metaphors for Law in Artis

In Artis, both Justices Ginsburg and Gorsuch address the question, what was
Congress doing in 1990 when it enacted § 1367(d)? But they employ different
distinctive rhetorical figures to present their answers to it. 

Justice Ginsburg’s majority opinion uses mechanistic and technological
metaphors, while Justice Gorsuch’s dissent uses agrarian and naturalistic ones.
These metaphorical choices bespeak different views about the nature of
lawmaking: a technocratic view of law as tinkering and engineering versus a
naturalistic view of lawmaking as preserving the past. 

1. Justice Ginsburg’s Mechanistic Metaphors.—In the majority opinion,
Justice Ginsburg uses two related metaphors. She describes the “stop the clock”
understanding of tolling, and she refers to the two possible understandings as
“off-the-shelf” legal devices.153

The most prevalent metaphor in Justice Ginsburg’s opinion is the “clock”
metaphor. It is a concrete, physical metaphor to describe how tolling the statute
of limitations works: imagine that there is a clock counting down the time
remaining on a statute of limitations, pause it while the federal case is ongoing,
and restart it when the federal court declines to hear the state-law claims.
Ginsburg uses it at least thirty-six times in her opinion, in such phrases as “stop-
the-clock reading,” “the limitations clock,” “to hold it [the limitations period] in
abeyance, i.e., to stop the clock,” etc.154

This clock metaphor is a conventional one with an established meaning.
Judicial opinions often use the image of a clock to describe limitations periods.
In Artis, Justice Ginsburg quotes United States v. Ibarra, where the Court wrote
that “[p]rinciples of equitable tolling usually dictate that when a time bar has been
suspended and then begins to run again upon a later event, the time remaining on
the clock is calculated by subtracting from the full limitations period whatever
time ran before the clock was stopped.”155 Justice Alito, a few months after

153. Artis, 138 S. Ct. at 607.

154. Id. at 601-07.

155. Id. at 602 (quoting United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (per curiam)).



2023] ARTIS V. DISTRICT OF COLUMBIA 351

joining Justice Gorsuch’s dissent in Artis, wrote that part of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 “acts as a stop-
time rule, preventing the [statute’s] continuous-presence clock from continuing
to run.”156 Justice Thomas has noted that, under Title VII, “[e]ach discrete
discriminatory act starts a new clock for filing charges alleging that act.”157 And
courts discussing the seventy-day time limit within which a criminal trial must
commence often describe the “speedy trial clock” starting, stopping, and
ticking.158

Justice Ginsburg uses another metaphor as well, one based on the idiom “off-
the-shelf.” She asserts that both approaches—the stop-the-clock and the grace-
period readings—are “devices [that] are standard, off-the-shelf means of
accounting for the fact that a claim was timely pressed in another forum.”159 This
is another concrete, physical metaphor. The comparison is not, as one might think,
to law books on a shelf160 but rather to standardized machine parts.161 The idiom
“off the shelf” describes “ready-made goods,” interchangeable parts that are
“available as a stock item [or] not specially designed or custom-made.”162 

Like the stop-the-clock metaphor, the off-the-shelf metaphor is also based on
established, albeit newer, idiom. The phrase “off the shelf” was first used to
describe standardized, manufactured parts and products in the mid-20th
century.163 The Supreme Court has used the phrase in that (more) literal sense to
describe actual machine parts and consumer goods. In a patent case, KSR v.
Telflex, the Court noted that a “modular sensor” can be “taken off the shelf and

156. Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Alito, J., dissenting).

157. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

158. See, e.g., United States v. Tinklenberg, 563 U.S. 647, 2011, 2012, 2015 (2011); id. at 2017

(“Since Veterans Day, Thanksgiving Day, and three weekends all fell within the 20-day period, only

2 days, not 10 days, were considered excessive, during which the 70-day Speedy Trial Act clock

continued to tick.”); Zedner v. United States, 547 U.S. 489, 507, 509 (2006).

159. Artis, 138 S. Ct. at 607.

160. Elsewhere, Justice Gorsuch employs that seemingly related, but ultimately different

metaphor: “The common law offers a vast legal library. Like any other, it must be used thoughtfully.

We have no business wandering about and randomly grabbing volumes off the shelf, plucking out

passages we like, scratching out bits we don’t, all before pasting our own new pastiche into the U. S.

Reports. That does not respect legal history; it rewrites it.” Torres v. Madrid, 141 S. Ct. 989, 1014

(2021) (Gorsuch, J., dissenting). Despite referring to taking books “off the shelf,” Justice Gorsuch’s

metaphor, and his point, is the opposite of Justice Ginsburg’s in Artis. He is accusing the Torres

majority of selectively choosing and recombining unique elements from a “vast library,” the opposite

of Justice Ginsburg’s description of Congress employing a standardized part. As discussed below,

Justice Gorsuch levels a similar metaphorical critique against Justice Ginsburg’s majority opinion

here.

161. Shelf, n.1(e), OXFORD ENGLISH DICTIONARY (2022) (“off the shelf: from a supply of ready-

made goods”).

162. Id.; see also Off-the-shelf, MERRIAM-WEBSTER, available at https://www.merriam-

webster.com/dictionary/off-the-shelf [https://perma.cc/TK6L-F3R3] (last visited Nov. 4, 2022).

163. Shelf, n.1(e), supra note 161.



352 INDIANA LAW REVIEW [Vol. 56:329

attached to mechanical pedals of various sorts.”164 Justice Ginsburg—dissenting
in the personal jurisdiction case, McIntyre Machinery v. Nicastro—quoted the
machinery manufacturer’s brochure advertising that its machines used “off-the-
shelf hydraulic parts” to ensure easy serviceability.165 And multiple lower courts
have used the phrase in this literal sense.

Notably, in Artis Justice Ginsburg does not use the off-the-shelf idiom in this
more literal sense to describe actual mechanical parts. She uses it to describe the
two possible readings of § 1367(d) as legal “devices” (a term she also uses, which
slightly echoes and expands the legal-concept-as-machine-part metaphor).166

(Justice Gorsuch, for his part, picks up on this metaphor when, in his response to
Ginsburg’s “off-the-shelf” metaphor, he calls the two different readings “legal
tool[s]” and states that the Court should be looking on a different shelf
altogether.)167

In this way, Justice Ginsburg’s off-the-shelf metaphor is somewhat novel. But
for the most part she does not elaborate on her mechanistic metaphors, and they
retain only a hint of metaphorical double-meaning. Although not completely dead,
Ginsburg’s metaphors are straightforward and conventional compared to
Gorsuch’s more florid figurative language discussed below.

Justice Ginsburg’s “stop the clock” and “off the shelf” metaphors for
congressional lawmaking express a particular view of law and lawmaking: Law
is like a machine, different legal devices are like mechanical parts, and Congress
is like a mechanic or engineer plugging in parts and tinkering with them.168 It is

164. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 409 (2007) (“In addition to patents for pedals

with integrated sensors inventors obtained patents for self-contained modular sensors. A modular

sensor is designed independently of a given pedal so that it can be taken off the shelf and attached to

mechanical pedals of various sorts, enabling the pedals to be used in automobiles with computer-

controlled throttles.”).

165. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 894 (2011) (Ginsburg, J., dissenting)

(“McIntyre UK represented in the brochure that, by ‘incorporat[ing] off-the-shelf hydraulic parts

from suppliers with international sales outlets,’ the 640 Shear’s design guarantees serviceability

‘wherever [its customers] may be based.’”). The Court used the same idiom in other contexts. See,

e.g., NLRB v. Bell Aerospace Co., 416 U.S. 267, 269 (1974) (“Some items are standardized and may

be purchased ‘off the shelf’ from various distributors and suppliers. Other items must be made to the

company’s specifications, and the requisition orders may be accompanied by detailed blueprints and

other technical plans.”); Bartnicki v. Vopper, 532 U.S. 514, 522 n.6 (2001) (“information concerning

techniques and devices for intercepting cell and cordless phone calls can be found in a number of

publications, trade magazines, and sites on the Internet, . . . and at one set of congressional hearings

in 1997, a scanner, purchased off the shelf and minimally modified, was used to intercept phone calls

of Members of Congress.”).

166. Artis v. District of Columbia, 138 S. Ct. 594, 607 (2018).

167. Artis, 138 S. Ct. at 617 n.10 (Gorsuch J., dissenting); see infra text accompanying note 206.

168. See id. at 607 (majority opinion). In addition to suggesting a physical clock, Justice

Ginsburg’s “stop the clock” metaphor also brings to mind a sport like basketball or (American)

football, where the game clock is stopped to resolve an issue or conflict before the game can proceed.

This suggests a different familiar metaphor, comparing litigation to a game or a sport. See Megan E.



2023] ARTIS V. DISTRICT OF COLUMBIA 353

a pragmatic vision of law as a collective technological project, improving
incrementally over time through the creation and application of legal devices and
precedents.

2. Justice Gorsuch’s Agrarian Metaphors.—Justice Gorsuch employs a
different set of metaphors, with different implications. Perhaps because it is a
dissenting opinion and perhaps because Gorsuch is a more rhetorically
adventurous writer than Justice Ginsburg,169 Gorsuch’s dissent is more overt and
expansive in its use of figurative language.

Justice Gorsuch’s dissenting opinion begins with a reference to “Chesterton’s
fence”:

Chesterton reminds us not to clear away a fence just because we cannot
see its point. Even if a fence doesn’t seem to have a reason, sometimes
all that means is we need to look more carefully for the reason it was built
in the first place. The same might be said about the law before us.170

The concrete metaphor underlying this principle (a law is like a fence) makes
intuitive sense: laws can restrict conduct just as fences can restrict movement.
Indeed, fences often mark the borders that are policed by laws like trespass and
immigration law. 

The Chesterton who “reminds us” is G.K. Chesterton, an early 20th century
English essayist who articulated the following “plain and simple principle”:

There exists . . . a certain institution or law; let us say, for the sake of
simplicity, a fence or gate erected across a road. The more modern type
of reformer goes gaily up to it and says, “I don’t see the use of this; let us
clear it away.” To which the more intelligent type of reformer will do
well to answer: “If you don’t see the use of it, I certainly won’t let you
clear it away. Go away and think. Then, when you can come back and tell
me that you do see the use of it, I may allow you to destroy it.”171

Thus, the Chesterton’s fence metaphor is an argument for stability and against
reform (or, at least, against unthoughtful reform).

Immediately after deploying this fence metaphor, Justice Gorsuch moves on
from (and seemingly contradicts) it. He switches to a different metaphor when he
describes the tolling provision as being “[g]rown from a rich common law and

Boyd, Riding the Bench—A Look at Sports Metaphors in Judicial Opinions, 5 HARV. J. SPORTS &

ENT. L. 245 (2014). However, the sport metaphor is not intuitively related to the off-the-shelf

metaphor, and thus the mechanistic, technological reading seems to predominate in Justice

Ginsburg’s opinion.

169. See Nina Varsava, Elements of Judicial Style: A Quantitative Guide to Neil Gorsuch’s

Opinion Writing, 93 N.Y.U. L. REV. ONLINE 75 (2018); Adam Liptak, #GorsuchStyle Garners a

Gusher of Groans. But Is His Writing Really That Bad?, N.Y. TIMES (Apr. 30, 2018), https://www.

nytimes.com/2018/04/30/us/politics/justice-neil-gorsuch-writing-style.html [https://perma.cc/92ND-

263J].

170. Artis, 138 S. Ct. at 608 (Gorsuch, J., dissenting).

171. GILBERT KEITH CHESTERTON, THE THING 35 (1929).



354 INDIANA LAW REVIEW [Vol. 56:329

state statutory tradition.”172 Now he describes the tolling provision not as
something that was not built like a fence, but as something that grew like a plant.
Although Gorsuch returns to the fence metaphor at the end of his opinion, he uses
such plant metaphors much more. 

Most obviously, Justice Gorsuch relies on a particular canon of construction:
“When Congress replants the roots of preexisting law in the federal code, this
Court assumes it brings with it the surrounding soil . . .”173 He uses this root-ball
metaphor174 to liken congressional lawmaking not to building a fence but to
replanting a plant. He then extends this metaphor considerably, making repeated
agrarian and vegetal references in the following paragraph:

Respect for Congress, this Court has held, means assuming it knows and
“legislate[s] against a background of [the] common law . . . principles”
found in the field where it is working. And, as we’ve seen, the state law
of tolling Congress expressly referenced and replanted in section 1367(d)
comes heavily encrusted with meaning. In cases involving dismissal and
refiling, state statutory law and the common law from which it grew have
long afforded a grace period to allow the litigant an appropriately tailored
time to find his way to the proper court. Meanwhile, a stop clock
approach isn’t usually part of this ecosystem for nothing has disabled the
litigant from reaching a court in the first place and all he must do is
journey from the old court to the new one. We don’t assume Congress
strips replanted statutes of their soil, and we should not assume Congress
displaced so much tradition in favor of something comparatively
foreign.175

Accordingly, Gorsuch argues, the Court should adopt the grace-period reading
because grace periods “find their roots in a common law rule known as the
‘journey’s account.’”176

The metaphor of law as a plant “rooted” in something else—prior law,
common law, tradition, etc.—is not new (although most judges do not elaborate
on it as much as Justice Gorsuch does). Judges and scholars often compare the
common law to a tree, for example.177 Judges refer to laws and principles having
“roots” or even “taproots” in common law and earlier history.178 More

172. Artis, 138 S. Ct. at 608.

173. Id. at 613-14.

174. Thanks to Professor Judy Cornett for coining this term.

175. Artis, 138 S. Ct. at 614 (alterations in original) (citations omitted) (emphases added).

176. Id. at 610.

177. See Isabelle Richard, Metaphors in English for Law: Let Us Keep Them!, 8 LEXIS J. ENG.

LEXICOLOGY 7-9 (2014) (collecting examples of metaphors comparing the common law (and civil

law, and Roman law) traditions to a tree).

178. Bogan v. Scott-Harris, 523 U.S. 44, 48-49 (1998) (“The principle that legislators are

absolutely immune from liability for their legislative activities has long been recognized in Anglo-

American law. This privilege ‘has taproots in the Parliamentary struggles of the Sixteenth and

Seventeenth Centuries’ and was ‘taken as a matter of course by those who severed the Colonies from



2023] ARTIS V. DISTRICT OF COLUMBIA 355

specifically, Justice Gorsuch’s root-ball metaphor is likely drawn from Justice
Felix Frankfurter’s 1947 article “Some Reflections on the Reading of Statutes,”
where Frankfurter observed that, “if a word is obviously transplanted from
another legal source, whether the common law or other legislation, it brings the
old soil with it.”179 Although Gorsuch provides no citation in Artis, he has cited
Frankfurter’s article for this principle elsewhere.180

Justice Gorsuch’s root-ball and other vegetal metaphors suggest a different
view of the law and lawmaking than Justice Ginsburg’s mechanistic ones. They
describe the law as an ecosystem with different legal devices as plants, and
Congress as a farmer or gardener tending to them. Whereas Ginsburg’s metaphors
suggest a pragmatic, progressive view of the law, Gorsuch’s seem to suggest a
view of the law as complex, interrelated system prone to change and growth, to
be tended like a garden but ultimately subject only to limited congressional or
judicial alteration.

But a closer look at Justice Gorsuch’s metaphors complicates this
interpretation. Although he points out how Justice Ginsburg’s off-the-shelf
metaphor exceeds her intended meaning,181 his own metaphors seem even more
out of his control and prone to causing reader confusion.

First of all, upon close inspection, Justice Gorsuch’s invocation of
Chesterton’s fence seems self-contradictory. Even leaving aside the inevitable, if
momentary, confusion of using a fence metaphor to discuss tolling (which brings
up images of toll booths and gates), the metaphor does not quite fit his argument.
Gorsuch’s metaphorical argument is that his grace-period approach would
preserve the “fence” and Justice Ginsburg’s stop-the-clock approach would tear
it down. But what exactly is the fence he is arguing should be preserved? Under
either reading, the tolling provision tears down a fence, namely the state statute
of limitations which it sets aside. That is what a tolling provision does. Under
Gorsuch’s grace-period approach, which sets a separate thirty-day limit, the

the Crown and founded our Nation.’”) (quoting Tenney v. Brandhove, 341 U.S. 367, 372 (1951)).

179. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527,

537 (1947). 

180. See, e.g., Hammond v. Stamps.com, Inc., 844 F.3d 909, 911 (10th Cir. 2016); United States

v. Adame-Orozco, 607 F.3d 647, 654 (10th Cir. 2010); Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1155

(10th Cir. 2010). There is another possible source for the root-ball metaphor—Justice Jackson’s

description of interpreting the First Amendment as “transplant[ing]” the Bill of Rights from the

eighteenth-century “soil which also produced a philosophy that the individual was the center of

society, that that his liberty was attainable through mere absence of governmental restraints, and that

government should be entrusted with few controls and only the mildest supervision over men’s

affairs” to the twentieth-century “soil in which the laissez-faire concept or principle of non-

interference has withered at least as to economic affairs, and social advancements are increasingly

sought through closer integration of society and through expanded and strengthened governmental

controls.” W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624, 639-40 (1943). That usage, however,

seems to contradict Justice Gorsuch’s (and Justice Frankfurter’s) in that it describes transplanting as

an act of change and adaptation that need not inevitably bring along the original surrounding soil.

181. See Artis v. District of Columbia, 138 S. Ct. 594, 608-11 (2018) (Gorsuch, J., dissenting).



356 INDIANA LAW REVIEW [Vol. 56:329

tolling provision both tears down one fence (the state statute of limitations) and
erects a new one (the grace period which, depending on the specific case, may be
shorter or longer than the state limitations period). But the Chesterton’s fence
metaphor is not about re-erecting fences; it suggests that the fence should not be
torn down at all (or only for a good reason). Moreover, when Gorsuch returns to
Chesterton’s fence at the end of his opinion, he shifts the tenor of the metaphor
with little explanation, using the fence to describe the “basic boundary between
federal and state power,” an entirely different boundary.182

Secondly, recall the mismatch between Justice Gorsuch’s two metaphors: the
fence that was built by someone and the plant that grew there.183 Likening the
tolling provision to both a fence and a plant contradicts Chesterton’s own
“common sense” explanation for his fence metaphor: “The gate or fence did not
grow there. . . . Some person had some reason for thinking it would be a good
thing for somebody,” and thus it should not be torn down with knowing that
reason.184 By saying that the tolling provision grew out of the “soil” of the
common law, Gorsuch seems to imply that it was a natural growth, meaning no
one had a “reason for thinking it would be a good thing.”185

Indeed, Justice Gorsuch’s plant metaphors seem designed not to suggest one
of typical implications of plant metaphors: the capacity for natural growth and
change.186 They do not call to mind the famous observation of the Canadian
Supreme Court that the meaning of the Canadian Constitution had changed to
permit women to serve as senators because its drafters had “planted in Canada a
living tree capable of growth and expansion within its natural limits.”187 Nor do
they suggest the possibility of weeding out past wrongs, like the U.S. Supreme
Court’s directive in Green v. County School Board that racial discrimination in
schools be “eliminated root and branch.”188 Instead of suggesting growth and
change, Gorsuch’s root-ball metaphor argues for things to remain the same as they
ever were.

What to make of these contradictions? Is it just an unfortunate mix of
incompatible metaphors? Fences that are paradoxically plants? Roots without
growth? No. Although Justice Gorsuch’s figurative language does not cohere
logically, his mixed metaphors work together to create an impressionistic contrast
to Justice Ginsburg’s view of law as technological progress—an idyllic, agrarian
vision of law rooted in an imagined vision of tradition.

Pastoral images of an idealized past have long been associated with an

182. Id. at 617.

183. See supra text accompanying notes 170-76.

184.  CHESTERTON, supra note 171, at 35.

185. Id.

186. See FARNSWORTH, supra note 19, at 26, 61.

187. Edwards v. A.G. Canada, [1930] A.C. 124.

188. Green v. County Sch. Bd., 391 U.S. 430, 437-38 (1968) (observing that, under prior

desegregation cases, “[s]chool boards . . . were . . . clearly charged with the affirmative duty to take

whatever steps might be necessary to convert to a unitary system in which racial discrimination

would be eliminated root and branch”).



2023] ARTIS V. DISTRICT OF COLUMBIA 357

imagined purity or rustic truth. Cultural critic Raymond Williams, in his book The
Country and the City, explores the long literary history of tropes comparing rural
and urban life.1 8 9 He demonstrates that throughout English literature authors
depict rural life as a quasi-prelapsarian, pastoral ideal; a “myth functioning as a
memory” that they contrast with urban life, depicted as the site of modernity,
technology, and capitalist production.190 In Williams’ remarkable second chapter
“A Problem of Perspective,” he traces out the tradition of English authors
bemoaning the loss of a more honest, more innocent, rural way of life.191 And he
demonstrates that, although every author claims that they remember that idyllic
pastoral life and that it disappeared within their lifetime, authors have been
making that same claim for centuries.192 Indeed, he traces the trope of lost pastoral
simplicity back to Piers Plowman in the 14th century and beyond.193 Williams
identifies that vision of “an earlier and happier rural England” with an imagined
“golden age,” “an idealisation of feudal and immediately post-feudal values: of
an order based on settled and reciprocal social and economic relations of an
avowedly total kind.”194

A similar mythologized vision of an agrarian golden age exists in the
American psyche. Henry Nash Smith, in Virgin Land: The American West as
Symbol and Myth, connects it to westward expansion and the American
foundational myth of the frontier.195 And Leo Marx’s The Machine in the Garden
identifies in American literature a recurrent thematic tension between an idyllic
pastoral landscape and the technology of modernity, a “yearning for a simpler,
more harmonious style of life,” that “hangs over our urbanized landscape” like a
“soft veil of nostalgia,” “a vestige of the once dominant image of an undefiled,
green republic, a quiet land of forests, villages, and farms dedicated to the pursuit
of happiness.”196 

This nostalgic connection of an idyllic, agrarian past with an imagined
tradition and truth explains how Justice Gorsuch mixes the Chesterton’s fence and
the root-ball metaphors. What they have in common is that they call to mind a
pastoral, agrarian English past, the mythical source for our common law tradition. 

*    *    *

Ultimately, Justice Ginsburg’s mechanistic metaphors for law and lawmaking
describes a particular judicial philosophy. By likening the law to a machine built
over time by Congress and the courts, Ginsburg suggests a judicial philosophy

189. RAYMOND WILLIAMS, THE COUNTRY AND THE CITY 9-12, 43 (1975).

190. Id. 

191. Id. at 9-12.

192. Id. 

193. Id. at 11.

194. Id. at 35.

195. HENRY NASH SMITH, VIRGIN LAND: THE AMERICAN WEST AS SYMBOL AND MYTH (1950),

available at http://xroads.virginia.edu/~Hyper/HNS/home.htm [https://perma.cc/FWQ4-MSJZ]. 

196. LEO MARX, THE MACHINE IN THE GARDEN: TECHNOLOGY AND THE PASTORAL IDEAL IN

AMERICA 6 (1964).



358 INDIANA LAW REVIEW [Vol. 56:329

based on precedent and policy. It is a practical and progressive view of the law,
where each component of the legal machine (each legal device or precedent) is
invented, implemented, and improved on over time, and then employed by
lawmakers and judges.

Justice Gorsuch’s root-ball metaphor for lawmaking describes a different
judicial philosophy, one rooted in an imagined history or tradition, where the
interventions of Congress and the courts are necessarily limited by an inherently
conservative natural reality, an imagined past tradition that clings to any such
intervention, like the encrusted soil that can never be fully dislodged from the
transplanted root-ball. 

C. Metaphorical Effects in Artis

The previous section examined the meanings of the metaphors in Artis and
the different visions of law and lawmaking offered by their mechanical and
agrarian vehicles. This section examines how Justices Ginsburg and Gorsuch
deploy their chosen metaphors and the rhetorical effects of those choices.

Interestingly, each Justice’s chosen metaphors seem to describe not only their
vision of lawmaking, but also their own rhetorical practice in Artis: Justice
Ginsburg uses metaphors more mechanically, and Justice Gorsuch uses them
more organically. To be sure, neither of them use only dead metaphors, with
fixed, literal meanings. But his are certainly livelier than hers. Ginsburg’s
mechanistic metaphors are more conventional and controlled, near the dead-
metaphor end of the spectrum—while Gorsuch’s agrarian ones are more novel
and lively. Ginsburg’s metaphors are more like off-the-shelf mechanical parts
with fixed meanings. Gorsuch’s are more like transplanted plants with root balls
laden with implications.

Justice Ginsburg uses more conventional metaphors (“stop the clock” and “off
the shelf”) with well-established meanings that serve as a shorthand to guide legal
thinking. Because they draw on conventional idioms, they are relatively
unburdened by metonymic associations and implications. They are, in other
words, like off-the-shelf components ready to be installed in the machinery of
legal thought. Just as an engineer selects an off-the-shelf component (and a
legislature selects an off-the-shelf legal device), Ginsburg selects an established
legal idiom (stop the clock). And just as the engineer installs it into a machine
(and the legislature uses it into a statute), Ginsburg uses the idiom without
explicitly invoking the metonymic associations.

Justice Ginsburg’s metaphors do not call attention to themselves. They have
established meanings from which she does not deviate. They serve a clear
function in the logical machinery of her legal argument. But that is not so say that
Ginsburg’s metaphors are inartful or her deployment of them is unthinking. Plain
speech is a rhetorical device. Using clear concrete metaphors, mostly shorn of
other associations and implications, gives the impression of “a seemingly natural
appeal to common sense.”197 By deploying more conventional metaphors that
downplay their figurative nature, Ginsburg gives the impression of speaking

197. Berger, supra note 44, at 34, 30.



2023] ARTIS V. DISTRICT OF COLUMBIA 359

plainly, approaching the Lockean ideal of “speak[ing] of things as they are.”198

Justice Gorsuch deploys his root-ball and other plant metaphors differently.
His use of metaphor is more showy, calling attention to the rhetorical and
figurative nature of his writing. As explained above, Gorsuch’s metaphors also
have conventional origins. But his elaborate, extended use of them ensures that
readers do not quickly parse them and move on. They aren’t like mechanical
components; they are like transplanted plants. They bring over ideas from other
contexts and traditions, carrying with them at least some of the “soil” of their
origins. Just as a farmer transplants a root from one field to another (and a
legislature transplants a term from another area to a statute), Gorsuch transplants
images from one metaphoric context (the agrarian, naturalistic one) to another
(the legal one). And, just as the farmer brings along the soil (and the legislature
brings along related concepts), Gorsuch deliberately brings along the metonymic
associations of history and tradition. 

Justice Gorsuch’s different deployment of metaphor creates different
rhetorical effects. The most obvious effect of showy metaphors is ornamental.
They make Gorsuch’s discussion of an otherwise fairly dry procedural point more
fun.199 And they make the opinion more memorable. Unlike Ginsburg’s plain-
speech approach—which seems designed to be ignored or forgotten, subsumed
to the apparent clarity of the legal argument—Gorsuch’s extended rhetorical
flourishes are designed to be noticed and remembered. 

Another effect of Justice Gorsuch’s elaborate metaphors is to create a
connection with the reader. By inviting a reader to take an active part in
deciphering the non-literal use of language, metaphors can create a sense of
intimacy between the author and the reader.200 Here, by not only using the root-
ball metaphor, but by elaborating on it so extensively, Gorsuch invites the reader
into a sort of game, identifying and recognizing the repeated vegetal or agrarian
references. And each repeated reference has the cumulative effect of reinforcing
the metaphorical connection and making the comparison seem stronger.

Indeed, although it is a dissent with no precedential power, Justice Gorsuch’s
use of Justice Frankfurter’s root-ball metaphor has already influenced subsequent
legal argument at the Supreme Court. In the twenty-eight years before Artis was
decided, Justice Frankfurter’s metaphor was only invoked during oral argument
at the Court one time.201 In the three years of oral arguments since Artis, advocates

198. LOCKE, supra note 45.

199. Justice Gorsuch’s use of natural metaphors also helps insulate his reasoning from criticism.

As A.O. Scott commented, describing the poet Shelley’s metaphor likening a poem to a flower, “the

effect, and perhaps the intention, of construing works of art as natural phenomena is to place them

beyond the reach of criticism. Who but a lunatic or an idiot would critique a rose or a mountain or a

sunset, or for that matter an earthquake or a thunderstorm?” A.O. SCOTT, BETTER LIVING THROUGH

CRITICISM 131 (2016).

200. See Ted Cohen, Metaphor and the Cultivation of Intimacy, 5 CRITICAL INQUIRY (SPECIAL

ISSUE ON METAPHOR) 3 (1978).

201. Transcript of Oral Argument at 29, Taggart v. Lorenzen, 139 S. Ct. 1795 (2019) (No. 18-

489). (“For civil contempt, we think that the text of 524 is what controls. The text of 524 says that a



360 INDIANA LAW REVIEW [Vol. 56:329

and Justices have referenced it at least eleven times.202

And in Dobbs v. Jackson Women’s Health Organization, the Court recently
revived and reinvigorated the Glucksberg test for whether an unenumerated
constitutional right exists, which asks whether the right is “deeply rooted in this
Nation’s history and tradition.”203 A pragmatic vision of lawmaking built on
precedent (like that suggested by Justice Ginsburg’s mechanistic metaphors)
would not have allowed for such a ruling.204 To be sure, when overturning Roe v.
Wade because the right to abortion was not “deeply rooted” in history and
tradition, Justice Alito did not explicitly invoke the root-ball metaphor or cite the
Artis dissent. But that is the nature of metaphorical influence. It can operate
without explicit citation or recognition. 

*     *     *

Both Justice Ginsburg’s and Justice Gorsuch’s uses of figurative language
seem effective, albeit in different ways. The difference between Ginsburg’s more
understated, conventional metaphors and Gorsuch’s more performative, lively
metaphors accounts for their different rhetorical effects. Ginsburg’s more
restrained use of mostly conventional metaphors gives the impression of plain
speech and legal logic, working like a machine to present a convincing majority
opinion. Gorsuch’s more ornamental use of more lively metaphors is more
entertaining and inviting, with a more subtle, underground influence, as it were.

discharge order operates as an injunction, and not to borrow Justice Frankfurter’s sort of horticultural

analogy, but that brings all the old soil with it, the word ‘injunction.’”)

202. See Transcript of Oral Argument at 46, 74-75, George v. McDonough, 142 S. Ct. 858

(2022) (No. 21-234) (“[I]t exists in the very context that Congress is codifying it, that it is presumed

to take the old soil with it. And it doesn’t require that Congress said, oh, yeah, we want — we like this

bit of grass and we like this bit of soil. You just take the whole thing writ large.”); Transcript of Oral

Argument at 92-93, Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022) (No. 21-429) (“We know

that when Congress transplants language from one legal source to another, the language carries the

old soil with it. And here the old soil includes a mens rea element.”); Transcript of Oral Argument

at 4, Shular v. United States, 140 S. Ct. 779 (2020) (No. 18-6662); Transcript of Oral Argument at

44-45, Kemp v. United States, 142 S. Ct. 752 (2022) (No. 21-5726); Transcript of Oral Argument at

19, Ritzen Grp., Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582 (2020) (No. 18-938); Transcript of

Oral Argument at 44-45, Greer v. United States, 141 S. Ct. 2090 (2021) (No. 20-444); Transcript of

Oral Argument at 5-6, United States v. Briggs, 141 S. Ct. 467 (2020) (Nos. 19-108; 19-184);

Transcript of Oral Argument at 83, Minerva Surgical, Inc. v. Hologic, Inc., 141 S. Ct. 2298 (2021)

(No. 20-440), Transcript of Oral Argument at 34-36, 37, 40-41, Health & Hosp. Corp. of Marion

Cnty. v. Talevski, 2022 WL 18033755 (2022) (No. 21-806); Transcript of Oral Argument at 18,

Sackett v. EPA, 2022 WL 18033741 (2022) (No. 21-454); Transcript of Oral Argument at 56-57,

Bartenwerfer v. Buckley, 2022 WL 18033770 (2022) (No. 21-908). 

203. Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242 (2022) (quoting

Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). 

204. See id. at 2317-50 (Breyer, Sotomayor, and Kagan, JJ., dissenting).



2023] ARTIS V. DISTRICT OF COLUMBIA 361

D. The Excess of Metaphors in Artis

But both Justice’s metaphors also exceed their control. Despite Justice
Ginsburg’s attempts to speak plainly of things as they are, even her conventional
metaphors carry with them implications and associations. And Justice Gorsuch
toils mightily to downplay or obscure the associations (the surrounding soil) he
does not want his own metaphors to call to mind.

Justice Ginsburg’s metaphors do not fit seamlessly into the “machinery” of
discursive logic. They are, it seems, only mostly dead, and “mostly dead is
slightly alive.”205 An attentive reader, like Justice Gorsuch, can re-animate them,
like a rhetorical Dr. Frankenstein. Here, he responds to Ginsburg’s off-the-shelf
metaphor:

The Court’s reply—that stop clock tolling is “standard” and “off-the-
shelf”—is no answer. The propriety of a legal tool in one area does not
establish its propriety in all; while stop clock tolling may be standard and
off-the-shelf in other contexts (such as for equitable tolling) that doesn’t
mean it is necessary and proper here. Indeed, and as we’ve seen, the
“standard” and “off-the-shelf” solution to the problem of dismissal and
the need to refile is the one adopted at common law and by state law: a
grace period. If we’re interested in looking for the right shelf, that’s the
one.206

The intended effect of Justice Ginsburg’s off-the-shelf metaphor is to suggest
that tolling is a simple concept with an understood meaning, like a standard tool
or machine part with a simple use, that Congress simply adopted. And because it
is a largely conventional metaphor, it largely succeeds at conveying that intended
meaning. But, by repeating, elaborating on, and calling attention to Ginsburg’s
metaphor, Justice Gorsuch destabilizes it. He makes the metaphor explicit by
observing that the right “legal tool” for one job may not be right for another. And
he complicates it by arguing that, depending on the context, there could be
multiple tools on multiple shelves and that the Court should be “looking for the
right shelf.”207 By extending the seemingly straightforward off-the-shelf
metaphor, Gorsuch highlights what the metaphor is designed to obscure, that
Congress was not necessarily just re-using a standard available part when it
enacted § 1367(d), it was making a policy choice.208 Indeed, he shifts the focus
from the choice made by Congress in enacting the statue to the choice made by
the Ginsburg in interpreting it. He reveals the work done by her metaphor to
obscure the interpretive, and policy, choice being made.

But Justice Gorsuch’s own elaborate metaphors fare no better. As discussed
above, they are prone to contradiction and confusion.209 But even more tellingly,

205. THE PRINCESS BRIDE (20th Century Fox 1987).

206. Artis v. District of Columbia, 138 S. Ct. 594, 617 n.10 (2018) (Gorsuch, J., dissenting)

(citations omitted).

207. Id.

208. See id. at 610-12.

209. See discussion supra Sections II.B.2. For another example of how metaphoric associations



362 INDIANA LAW REVIEW [Vol. 56:329

in order to advance his argument for law based on history and tradition, Gorsuch
downplays the history and original context of the figurative language he employs.
Or, in metaphorical terms, despite his insistence that transplanted roots necessarily
bring along old soil, Gorsuch tries to strip away the soil encrusting his chosen
metaphors. In this regard, it is telling that Gorsuch does not provide real citations
for either the Chesterton’s fence or the root-ball metaphor.

Recall that Justice Gorsuch begins his dissent with “Chesterton reminds us
. . .” and provides no further citation for his invocation of Chesterton’s fence.210

On the one hand, this oblique invocation of Chesterton serves a rhetorical
purpose. It invites the reader to imagine an “us” who are already familiar with
Chesterton and the fence metaphor. If the reader knows who G.K. Chesterton is,
then the offhand reference brings to mind a certain tradition of British literature.
If they don’t know who G.K. Chesterton is, then the offhand reference implies
that they should, creating an impression of tradition and authority to which the
reader lacks access. Either way, using the phrase “Chesterton reminds us”
instead of an actual citation conjures up an imagined literary and intellectual
tradition, not unlike that invoked by his use of pastoral agrarian imagery later
on. 

On the other hand, the lack of a clear citation obscures crucial information
about the nature of that intellectual tradition. The origin of the Chesterton’s fence
trope is an essay entitled “The Drift from Domesticity,” from Chesterton’s 1929
collection of essays The Thing.211 The original tenor of the metaphor—the “fence”
that Chesterton wanted to preserve—was “the fundamental human creation called
the Household or the Home.”212 That is to say, Justice Gorsuch is invoking a
rhetorical figure from an anti-feminist essay, arguing for the preservation of
traditional gender roles. Perhaps especially because he is responding to an opinion
by feminist icon Justice Ginsburg, Gorsuch avoids explicitly citing a conservative
essayist defending traditional notions of domesticity and railing against the rise
of feminism.

Likewise, despite his extensive reliance on the root-ball metaphor, Justice
Gorsuch does not credit Justice Frankfurter with it. By omitting the citation, he
avoids other associations and implications from Frankfurter’s “Reading of
Statutes” article with which he would not agree. For one thing, Gorsuch uses the
root-ball metaphor differently than Frankfurter. Frankfurter was discussing
legislators’ use in legislation of particular words—terms of art with established
meanings in other contexts.213 Gorsuch does not use it to refer the transplanting
of particular words (likely because there is no evidence that terms “toll” or

escape the author’s control, consider how invoking history and tradition through pastoral metaphors

involving roots and soil (in a dissent from a Justice Ginsburg opinion) could be read to imply a

contrast with urban rootlessness, an anti-Semitic stereotype that Justice Gorsuch certainly did not

intend.

210. Artis, 138 S. Ct. at 608.

211. CHESTERTON, supra note 171, at 35.

212. Id. at 36.

213. Frankfurter, supra note 179, at 537. 



2023] ARTIS V. DISTRICT OF COLUMBIA 363

“tolling” had the limited grace-period meaning he advocates). Instead, Gorsuch
uses the “roots of preexisting law” to describe the underlying concept of tolling
when a case has been filed in the wrong court, and the “surrounding soil” is the
principle of using a grace period found in the common law rule of the journey’s
account, which he argues must be transplanted here.214

For another thing, other parts of Justice Frankfurter’s article (the “surrounding
soil”) contradict Justice Gorsuch’s approach to statutory interpretation. There are,
to be sure, some points of agreement between the two: Like Gorsuch,215

Frankfurter says judges should begin with the text of the statute.2 1 6 Like
Gorsuch,217 Frankfurter advocates for judicial humility and not importing judges’
policy preferences into statutes.218 But in other ways, Frankfurter’s interpretive
theory seems to be at odds with Gorsuch’s. Unlike Gorsuch,219 Frankfurter
expresses an openness to legislative history, asserting that, “[i]f the purpose of
construction is the ascertainment of meaning, nothing that is logically relevant
should be excluded.”220 Unlike Gorsuch,221 Frankfurter is wary of canons of
construction.222

Perhaps most tellingly, Justice Frankfurter’s article is based on his own
distrust of the kind of strict textualism that Justice Gorsuch advocates. For
Frankfurter, statutory interpretation is a “practical problem.”22 3 It is an inherently
inexact process given the “very nature of words,” which “seldom attain[ ] more
than approximate precision,” especially as used in legislation because a statute
must be understood as “an instrument of government partaking of its practical
purposes but also of its infirmities and limitations, of its awkward and groping
efforts.”224 For Frankfurter, the “intrinsic difficulties of language and the
emergence after of situations not anticipated by the most gifted legislative
imagination, reveal doubts and ambiguities in statutes that compel judicial
construction,” not just an unearthing, as it were, of a fixed, original textual
meaning.225 Indeed, for Frankfurter, the most “troublesome” and ultimately

214. Artis, 138 S. Ct. at 610, 613-14.

215. See, e.g., Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1721 (2017) (“we

begin, as we must, with a careful examination of the statutory text”).

216. Frankfurter, supra note 179, at 535.

217. See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (“Allowing judges to pick

and choose between statutes risks transforming them from expounders of what the law is into

policymakers choosing what the law should be.”)

218. Frankfurter, supra note 179, at 535.

219. See, e.g., Food Marketing Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019)

(stating that legislative history cannot be considered when the text is sufficiently clear).

220. Frankfurter, supra note 179, at 541.

221. See, e.g., Epic Sys. Corp., 138 S. Ct. at 1630 (invoking “the canon against reading conflicts

into statutes” and “other traditional canons”).

222. Frankfurter, supra note 179, at 544-45.

223. Id. at 529.

224. Id. at 528.

225. Id. at 529.



364 INDIANA LAW REVIEW [Vol. 56:329

insoluble question of statutory construction was the very one that Gorsuch’s
invocation of the root-ball metaphor is meant to elide: “the determination of the
extent to which extraneous documentation and external circumstances may be
allowed to infiltrate the text on the theory that they were part of it.”226 “What is
below the surface of the words and yet fairly a part of them?”227

Although Justice Frankfurter is often seen as a proponent of judicial restraint,
a position that Justice Gorsuch has also advocated, Frankfurter’s version of
judicial restraint embraced living constitutionalism,228 a position Gorsuch does not
endorse.229 And, of course, Frankfurter joined the unanimous opinion by Chief
Justice Warren in Brown v. Board of Education, with its famous declaration that
“we cannot turn the clock back to 1868 when the [Fourteenth] Amendment was
adopted” and that “[w]e must consider public education in the light of its full
development and its present place in American life throughout the Nation.”230 As
Professor Morton J. Horwitz has explained, arguing for the Warren Court as a
paradigm of living constitutionalism, “[o]ut of this seed in Brown v. Board of
Education there sprouted, during the Warren Court’s tenure, a very powerful view
held among several of the Justices that constitutions cannot be static, but are
designed to change.”231 It may be that Gorsuch avoids citing Frankfurter precisely
because the surrounding soil could contain seeds of living constitutionalism that
Gorsuch does not want to unearth.232

In sum, while Justice Gorsuch wants the rhetorical effect of an appeal to
tradition and origins (the “old soil”), he wants to selectively edit and shape the
tradition he invokes. He does not want to call to mind the sexist origins of
Chesterton’s fence or the living-constitutionalist tendencies of Justice Frankfurter.
And, ironically, he can only avoid those associations by stripping away the
surrounding soil of the sources he relies on.

CONCLUSION

Despite the conventional mistrust of figurative language in legal discourse,
metaphors abound in judicial opinions. Whether or not they are an inescapable
part of all conceptual thinking, as scholars have argued, metaphors certainly play

226. Id.

227. Id. at 533.

228. See Jack M. Balkin, Why Liberals and Conservatives Flipped on Judicial Restraint:

Judicial Review in the Cycles of Constitutional Time, 98 Tex. L. Rev. 215, 246 (2019) (“Justice

Frankfurter and his followers continued to advance the idea of living constitutionalism as a theory

of judicial restraint.”).

229. See Neil M. Gorsuch, Why Originalism Is the Best Approach to the Constitution, TIME

(Sept. 6, 2019, 8:00 AM), https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-

best-approach-to-the-constitution/ [https://perma.cc/Z2CN-EYU8].

230. 347 U.S. 483, 492-93 (1954).

231. Morton J. Horwitz, The Warren Court and the Pursuit of Justice, 50 WASH. & LEE L. REV.

5, 8 (1993).

232. See Balkin, supra note 228, at 263 (“Felix Frankfurter’s star may rise again among liberal

legal academics”).



2023] ARTIS V. DISTRICT OF COLUMBIA 365

a role in judges’ conception and articulation of legal principles.
The majority and dissenting Artis opinions employ different kinds of

metaphors, in different ways, with different effects. Justice Ginsburg’s
mechanistic metaphors describe the law like a machine, designed and modified
by legislators and judges over time, suggesting a judicial philosophy based on
progress, purpose, and precedent. Justice Gorsuch’s agrarian metaphors describe
the law like a plant rooted in the past, suggesting a judicial philosophy based on
unchanging history and tradition. 

The two Justices also differ in how they deploy their chosen metaphors.
Justice Ginsburg makes inconspicuous use of more conventional metaphors,
striving to minimize ornamental distraction and persuade through the appearance
of reason and practicality. Justice Gorsuch’s technique is less conventional and
more performative, relying on metaphoric associations to persuade through
entertaining, impressionistic invocations of a mythical naturalized tradition.

This is not to say that there is a one-to-one correspondence between different
metaphorical approaches and judicial philosophies or politics. Despite their usual
implications, mechanistic metaphors are not inherently progressive, and agrarian
metaphors are not inherently conservative. Nor are conventional metaphors
necessarily modern, or lively extended metaphors necessarily traditional. 

But close attention to judges’ use of metaphor—which ones they choose, how
they use them, and especially where they lose control of them—can reveal
otherwise unspoken ideas and disputes. By likening law to an inhuman
(mechanical or natural) process over which lawmakers and courts have little
influence, Justices Ginsburg and Gorsuch both work to obscure the human policy
choices involved in lawmaking and judicial interpretation. And a close reading of
those metaphors can reveal the stubborn soil of hidden implications and
associations clinging to the roots of their judicial philosophies.