Gregory C. Sisk, Lifting the Blindfold From Lady Justice: Allowing Judges to See the Structure in the Judicial Code

62 Fla. L. Rev. 457 (2010) |   |   |   |

ABSTRACT :: Two centuries ago, Chief Justice John Marshall wrote that “[w]here the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived.” Yet for more than half a century, Congress has forbidden judges to use the evidence before their own eyes when interpreting the federal Judicial Code. In what will come as a surprise to most readers, Congress has directed judges to ignore the plainly visible structure of logically organized parts and chapters with their identifying headings into which statutory sections have been placed through the 1948 enactment of Title 28 of the United States Code.

In an uncodified provision, Congress instructed that “[n]o inference of a legislative construction is to be drawn” by the location of a section in a particular chapter in Title 28 nor by the “catchlines” for parts, chapters, and sections. Thus, this little-known and half-hidden section casts the the Judicial Code’s brightly-lit profile into jurisprudential darkness.

In the sculptures and statues that ornament our courthouses, the Roman goddess Justicia often is portrayed with the sword of justice in one hand, the scales for weighing just deserts in the other hand, and a blindfold across her eyes symbolizing her lack of preferential favor for any person. While blindfolded to ward against the corruption of personal partiality, the assumption remains that Lady Justice can still see the law clearly with the eyes of the mind. But when abstruse legislation clouds the legal mind, Lady Justice must lift her blindfold so that the visible contours of the law come into sharper relief.

Sixty years of legislatively-imposed blindness on the federal judiciary is more than enough. The time has long since passed to retire this mischievous provision, to introduce transparency to the interpretation of the provisions collected in Title 28, and to let the light shine upon the federal Judicial Code’s carefully designed structure.

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