Measuring the fortress: explaining trends in Supreme Court and Circuit Court dictionary use.

• Author: Calhoun, John

NOTE CONTENTS INTRODUCTION I. RESEARCH METHODS II. FINDINGS A. The Supreme Court's Rapidly Increasing Dictionary Citation Rate, 1950 to 2010 B. The Effects of Originalism and Textualism on Supreme Court Dictionary Citation Rates C. Circuit Courts' Relatively Low Dictionary Citation Rates, 1950-2010 D. Parsing the Influence of Justice Scalia 1. Justice Scalia's Individual Dictionary Citation Rate 2. Justice Scalia's Persuasive Role 3. In Summary E. The Effects of Acceding to the Supreme Court upon Former Circuit Court Judges F. The Weakness of the Liberal/Conservative Distinction G. Fears of Judicial Activism and the Increasing Reliance on "Objective" Data 1. Reactions by the Supreme Court 2. Reactions by Circuit Courts 3. In Summary H. The Percentage of Criminal Law Cases as a Predictor of Supreme Court and D.C. Circuit Dictionary Usage Rates 1. Supreme Court 2. D.C. Circuit CONCLUSION APPENDIX I: LEGAL & GENERALIST DICTIONARIES APPENDIX II: FIFTH & NINTH CIRCUIT CRIMINAL LAW FIGURES INTRODUCTION

[I]t is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary....

--Judge Learned Hand (1)

The fox knows many things, but the hedgehog knows one big thing.

--Archilochus

Over the last twenty-five years, legal scholars, linguists, and lexicographers have paid increasing attention to Supreme Court Justices' use of dictionaries in Court opinions. Driving this trend is a perceived increase in Justices' reliance on dictionaries to support their arguments about statutory interpretation.

Some observers, often associated with textualists like Justice Antonin Scalia, welcome the increased use of dictionaries in federal court opinions. (2) To supporters, dictionaries usefully catalog the ordinary meanings of words at different points in time. (3) Understanding a word's ordinary meaning, on this view, is important because legislatures usually intend to use words' ordinary meanings when passing statutes, unless otherwise specified. Statutory interpretations that hew to ordinary meanings are therefore more likely to capture legislative intent. In this way, dictionaries help judges act as faithful agents of the legislature.

Other commentators disagree about dictionaries' usefulness in statutory interpretation. Critics see dictionaries as blunt tools, especially compared to what are in their view more probative materials such as legislative history. For example, in a dissenting opinion in Chamber of Commerce v. Whiting, Justice Breyer wrote in response to Chief Justice Roberts's use of a dictionary to define "license" that "neither dictionary definitions nor the use of the word 'license' in an unrelated statute can demonstrate what scope Congress intended the word 'licensing' to have as it used that word in this federal statute." (4)

Another source of possible doubt regarding the probative value of dictionaries as tools for statutory interpretation is the work of some professional lexicographers and linguists. According to Jesse Sheidlower, a former editor of the Oxford English Dictionary, "[I]t's probably wrong, in almost all situations, to use a dictionary in the courtroom. Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them." (5) Leading reference materials for lexicographers suggest that dictionaries are not definitive accounts of how words always are, or should be, used. (6) Dictionaries, according to some who edit them, provide histories of how people have used words--not descriptions of complete meanings. (7)

Critics of court dictionary usage have raised a number of concerns about the manner in which Supreme Court Justices use dictionaries. First, Justices may quote selectively from a single dictionary entry. Instead of reporting all entries for a particular word in a single dictionary, a Justice may report the one entry for a word (in a list of five, six, seven, or more entries) that best supports the Justice's preferred interpretation of a statute. (8) Second, and relatedly, Justices may choose only dictionaries with definitions that support their preferred interpretation of a statute. (9) This practice--called "dictionary shopping"--may disguise distortions of a word's meaning as objective exercises in statutory interpretation. (10)

In addition to concerns about particular citations, some are concerned that Supreme Court Justices' dictionary use may erode trust in the Supreme Court and the U.S. judicial system more generally. Although some observers already believe that Justices legislate from the bench, (11) a perceived lack of neutrality at the Supreme Court may feed cynicism about the federal judiciary (12) and, on this view, may have contributed to the decline in the Court's popularity over the last decade. (13)

Citing dictionaries to support statutory interpretations is necessarily controversial. First, routine reliance on seemingly objective dictionary definitions can obscure important contextual sources of meaning, such as legislative history and nearby words or phrases that modify the meaning of the word in question. For example, in Taniguchi v. Kan Pacific Saipan, Ltd., the majority relied upon dictionary definitions to conclude that the word "interpreter" in the 1978 Court Interpreters Act (14) covers the cost of oral translation services but not the cost of translating printed documents. Despite the fact that the majority opinion, penned by Justice Alito, recognized that different dictionaries disagree substantially about "interpreter," Justice Alito nonetheless treated a handful of dictionaries' mention that interpreters translate, "esp. orally," as clear evidence that "interpreter" according to the Act covers only oral translation services. (15)

Justice Ginsburg argued in dissent that an exclusive focus on dictionary definitions led the majority to ignore clear, relevant contextual evidence of the legislature's intended meaning of the word "interpreter." (16) For example, the Senate Reporter indicated that Congress's intention in passing the Act was to "insure that all participants in our Federal courts can meaningfully take part." (17) Refusing to cover the translation of crucial court documents, Justice Ginsburg argued, hardly seems consistent with a legislative intention to expand the number of citizens who "can meaningfully take part" in court proceedings. (18) Another piece of relevant evidence, Ginsburg argued, was that district courts had subsidized oral and documentary translation services before, and for decades after, the passage of the 1978 Act, without comment by Congress. (19) The majority, in its exclusive focus on dictionaries, made no note of this fact.

A second risk of reliance on dictionaries is that dictionaries often differ in important ways with regard to how to define words. (20) Thus, a definition from a randomly selected generalist dictionary is unlikely to represent settled consensus amongst lexicographers about how to define a word or phrase. Justices and judges, whenever they cite dictionaries, choose sides--often unwittingly--in ongoing debates among experts.

A third risk of Court dictionary usage--this one relating to judicial consistency--may arise because Justices tend to lack systematic conventions about which dictionaries to cite; whether to use generalist or specialist dictionaries; and whether to cite editions of dictionaries in use during the enactment of the statute or at the filing date of the suit. (21) For example, James Brudney and Lawrence Baum found little consistency in when or why Justices relied upon specialist legal dictionaries (for example, Black's or Ballentine's) instead of generalist dictionaries (for example, Oxford English or Webster's) to define certain terms. (22) Consequently, dictionary citation might threaten the Court's reputation for accuracy, fairness, and consistency.

Given the controversies surrounding federal court dictionary use, it is important that the legal community understands how often, when, and why Justices and judges use dictionaries. Our current empirical understanding of federal court dictionary usage is imperfect. The leading articles in the field--empirical studies by Jeffrey Kirchmeier and Samuel Thumma, as well as by Brudney and Baum--draw incompletely on existing Supreme Court opinions and not at all from circuit court opinions. These authors have been explicit about their inability to consult more data. For example, Brudney and Baum's functionalist analysis studied and tabulated dictionary citation rates for Supreme Court opinions in only three areas of law, and only from 1986 to 2011, in order to focus on building a powerful demonstration of how, and to a lesser extent how often, Justices actually abuse dictionaries. (23) Such studies are crucial contributions to the field, but as empirical examinations of longer-term trends in dictionary usage, they are incomplete.

Given the limited dataset upon which preexisting articles relied, it is not surprising that some of the conventional wisdom about circuit court and Supreme Court dictionary usage is incorrect or at least insufficiently nuanced. For example, Brudney and Baum contend there is no relationship between Supreme Court Justices' general jurisprudential ideology and the rate at which each Justice cites dictionaries. (24) However, as I will demonstrate in Part III.1.A, my fuller dataset reveals that textualist judges like Justices Scalia and Thomas do in fact cite dictionaries in a higher percentage of their opinions than non-textualist judges like Justices Ginsburg and Breyer. Additionally, Brudney and Baum report from their data that the Supreme Court's precipitous increase in dictionary usage began in the early 1990s, with the accession to the Court of Justice Souter and other more liberal Justices. My more comprehensive dataset reveals that this dating is inaccurate. The rise of the...