Oasis or mirage: the Supreme Court's thirst for dictionaries in the Rehnquist and Roberts eras.
Author | Brudney, James J. |
Position | Introduction through III. Empirical Findings on Dictionary Use B. Patterns of Dictionary Usage 2. Which Dictionaries?, p. 483-531 |
ABSTRACT
The Supreme Court's use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court's new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court's patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.
The Article then presents an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative history, or agency deference; and as barriers that preclude inquiry into or reliance on other contextual resources, especially legislative history and agency guidance. Ornamental opinions (the largest category) typically locate dictionary analysis at the start of the Court's reasoning, subtly conveying that the lexicographic method should matter more than other interpretive resources. Barrier opinions would have been inconceivable prior to 1987 but now occur with disturbing frequency: they elevate the justices' reliance on definitions in a radically acontextual manner, ignoring interpretive evidence from the enactment process and from agency experience.
Finally, the Article analyzes whether the Court's patterns of inconsistent dictionary usage, and its tendency to cherry-pick definitions that support results reached on other grounds, distinguish dictionaries from high-profile interpretive resources such as canons and legislative history that have been criticized on a similar basis. We contend that dictionaries are different from a normative vantage point, essentially because of how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and also how dictionaries are effectively celebrated as an independently constituted source of objective meaning (unlike the canons as judicial branch creations and legislative history as a congressional product). Yet our findings demonstrate that the image of dictionary usage as authoritative is a mirage. This contrast between the exalted status ascribed to dictionary definitions and the highly subjective way the Court uses them in practice reflects insufficient attention to the inherent limitations of dictionaries, limitations that have been identified by other scholars and by some appellate judges. The Article concludes by offering a three-step plan for the Court to develop a healthier approach to its dictionary habit.
TABLE OF CONTENTS INTRODUCTION I. THE COURT'S EMBRACE OF DICTIONARIES A. Striking Expansion in Usage B. Shelter from the Storm II. CONCEPTUAL CRITICISMS OF DICTIONARY USAGE A. The Court's Reluctance to Value Larger Context B. The Court's Indifference to Dictionary Taxonomy 1. Prescriptive Versus Descriptive Dictionaries 2. General Versus Legal Dictionaries 3. Dictionary Editions: Time of Enactment Versus Time of Case Filing 4. Other Distinctions: Dictionary Size and Definition Order C. Justice Scalia's Indirect Efforts at Rebuttal III. EMPIRICAL FINDINGS ON DICTIONARY USE A. How Much Do the Justices Use Dictionaries? 1. Broad Patterns of Usage 2. Usage by Different Justices 3. Ideology 4. Responses in Dissenting Opinions B. Patterns of Dictionary Usage 1. Number of Dictionaries Used 2. Which Dictionaries? 3. Briefs and Opinions 4. Date of Publication C. Implications IV. A SEGMENTED AND SUBJECTIVE DICTIONARY CULTURE A. The Dictionary and Criminal Law Cases B. The Dictionary as a Way Station C. The Dictionary as an Ornament D. The Dictionary as a Barrier E. Analysis 1. Dictionaries and Subjectivity 2. Ornaments, Barriers, and the Ideology of the Justices 3. Why Dictionaries are Different CONCLUSION "The writing of a dictionary ... is not a task of setting up authoritative statements about the 'true meaning' of words, but a task of recording, to the best of one's ability, what various words have meant to authors in the distant or immediate past. The writer of a dictionary is a historian, not a lawgiver." (1)
"[T]he acid test of whether a word can reasonably bear a particular meaning is whether you could use the word in that sense at a cocktail party without having people look at you funny." (2)
INTRODUCTION
Over the past twenty-five years, the Supreme Court has substantially increased its use of dictionaries when construing statutory text. (3) Legal scholars link this remarkable proliferation to the rise of textualism and its intense focus on ordinary meaning. Many Justices invoke dictionary definitions as an objective and relatively authoritative resource for discerning that ordinary meaning. (4) On the other hand, a chorus of critics has contended that, through their unrestrained use of dictionaries, textualist Justices are advancing a subjective and at times result-oriented approach to statutory interpretation. (5) There has been virtually no discourse among the Justices themselves regarding possible risks or benefits associated with dictionary reliance, even as that reliance continues to grow. (6) Such prolonged silence stands in marked contrast to the Court's internal debates regarding altered judicial attitudes toward the value of legislative history. (7)
This Article aims to develop a deeper understanding of the Court's expanding appetite for dictionaries in the Rehnquist and Roberts eras. We explore different aspects of the Justices' dictionary use through an empirical examination of nearly 150 majority, concurring, and dissenting opinions from 1986 to 2011. Our dataset focuses on three statutory areas-criminal law, labor and employment law, and business and commercial law--in which the Justices have invoked a range of general, legal, and technical dictionaries. (8) Our findings are predictable in certain respects but surprising in many others.
Consistent with previous scholarship, we identify a major increase in usage over time that is evident for all three subject areas. Within the Rehnquist and Roberts eras, the most intriguing rise dates not from Justice Scalia's arrival in 1986 but from the arrival of Justices Souter, Thomas, and Breyer by the early and mid-1990s. In contrast with the sharp decline in legislative history use that followed right after Justice Scalia joined the Court, (9) dictionary usage in majority opinions doubled for all three subjects between the early Rehnquist terms (1986-91) and the remainder of the Rehnquist era. Usage has continued to rise since 2005, although not at quite the same steep rate.
We found that dictionary usage is more prevalent in criminal law cases than in the two civil law categories. Additionally, with respect to criminal law cases, the Justices use general dictionaries more often than in civil cases, and when referencing a dictionary they define more words per case in the criminal law area. We believe multiple factors may help explain these criminal law findings, including the higher stakes associated with a statutory violation and the related due process concerns of the Justices.
In the vast majority of instances across our dataset, the Justices use only one or two dictionaries to define a particular statutory term. Having reviewed a sample of briefs from one-seventh of the cases referencing dictionaries, we found that opinions for the Court are highly selective about dictionary use in relation to what the litigants propose. Majority opinions generally use fewer dictionaries and define fewer words than have been offered by the parties or the federal government as amicus; in addition, majority opinions often make use of dictionaries and define words not mentioned in the parties' briefs. This selectivity, combined with the low number of dictionaries typically used to define a word, suggests that the Justices use dictionaries primarily to buttress positions they have already reached rather than to try and establish the true or truly applicable meaning of a contested word.
During our twenty-five year period, the heaviest dictionary users in our dataset include Justices Scalia, Thomas, Breyer, Souter, and Alito. The dictionary profiles for these Justices are individualized and distinctive. Justice Scalia opts more heavily for Webster's Second New International and the American Heritage Dictionary, general dictionaries that have been characterized as prescriptive in the lexicographic literature. Justice Thomas relies disproportionately on Black's Law Dictionary. Justice Alito is partial to Webster's Third New International and the Random House Dictionary, both regarded as descriptive. Justices Breyer and Souter are more eclectic: each is a frequent user of Black's, but Breyer also invokes Webster's Third and the Oxford English Dictionary (OED) with some regularity while Souter turns more often to Webster's Second. Indeed, even the Justices who make disproportionate use of one or two dictionaries are eclectic in that they frequently cite other dictionaries in particular cases. This pattern is consistent with a practice of seeking out definitions that fit a Justice's conception of what a word should mean rather than using...
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