Oasis or mirage: the Supreme Court's thirst for dictionaries in the Rehnquist and Roberts eras.

• Author: Brudney, James J.
• Position: III. Empirical Findings on Dictionary Use B. Patterns of Dictionary Usage 3. Briefs and Opinions through Conclusion, with footnotes, p. 532-580

3. Briefs and Opinions

   As with other resources for interpretation of statutes, the Justices often receive inputs from the litigants in the form of dictionary definitions of statutory terms. To probe the relationship between those inputs and the definitions that Justices ultimately cite in their opinions, we analyzed a sample of sixteen of the 117 cases in our study. (168) For each case, we compared the words defined and the dictionaries cited in briefs for the parties and for the United States as an amicus, when the Federal Government participated in that role, with the dictionaries cited in the Court's opinion. We treated two dictionaries as the same if they were labeled as the same edition even if they were published at different times.

   We found only a limited match between the use of dictionaries in the briefs and their use in the Court's opinion. Of the thirty-six words for which a dictionary was used in either a brief or a majority opinion, (169) only thirteen (36 percent) were defined with a dictionary in both the brief and the opinion. The disjunction ran in both directions. Among the thirty-one words with dictionary citations in a brief, only thirteen (42 percent) had dictionary citations in the Court's opinion; among the eighteen words with dictionary citations in the opinion, five (28 percent) did not have such citations in a brief.

   When a dictionary definition was used for the same word in the Court opinion and one or more briefs, the specific dictionaries can be compared. Of the thirteen words in question, the opinion had at least one dictionary in common with the briefs for ten. But for eight of the words, the opinion cited a dictionary that was mentioned in none of the briefs. And for all but one of the words, a brief cited a dictionary that the opinion did not. For only one of the thirteen words was there a full match between briefs and opinion, with each citing the same single dictionary.

   We would not expect the use of dictionaries in the briefs and their use in the Court's opinion to be exactly the same in all cases any more than we would expect that with other interpretive resources. Still, the wide divergence between the two in the words defined and the dictionaries used to define them is striking. Like other evidence we have discussed, this divergence suggests that both the decision whether to employ dictionaries to help define a particular word and the choice of dictionaries to cite are primarily case-specific rather than the result of systematic judgments. (170)

4. Date of Publication

   As we have discussed, Justices might have preferences for dictionaries published near the time at which a statute was enacted or the time when the controversy before the Court was initiated. (171) In turn, those preferences might reflect the Justices' broader approaches to statutory interpretation.

   We probed these preferences by identifying the years in which dictionaries were published, statutes were enacted, and Supreme Court cases were initially filed in court. If the publication date was within six years of enactment, we counted the dictionary as proximate to enactment. (172) We used the same six-year rule for the time of initiation for the controversy, which we defined as the year that the case that ultimately came before the Court was filed. If any dictionary cited in an opinion was contemporaneous in terms of enactment date, the opinion was treated as citing an enactment-date dictionary; again, we used the same approach with respect to filing date.

   For the Court as a whole, 40 percent of the majority opinions included at least one citation to a dictionary published near the time of enactment, and 45 percent included a citation to a dictionary published near the time the case was filed. Altogether, 11 percent of the opinions used dictionaries that met both of those criteria, (173) and 26 percent did not use a dictionary that met either criterion. (174)

   As important as the pattern for the entire Court are the practices of individual Justices. The Justices differed to some extent, but all the Justices who used dictionaries in a substantial number of majority opinions were eclectic. Table 4 shows the distribution of practices among Justices who cited dictionaries in ten or more opinions.

   Justice Scalia used dictionaries from close to the filing date more than two-thirds of the time, and Justice Souter used dictionaries from close to the enactment date more than half the time. But, with the possible exception of Scalia, (176) no Justice had a predominant practice, and all five Justices wrote multiple opinions with no definitions from dictionaries that were close to either the enactment or filing date.

   3. Implications

      We have discussed a number of patterns in the Justices' choices whether to cite dictionary definitions of words in statutes, and in the more specific choices they make in cases in which they do cite dictionaries. One aspect of those general patterns involves what we found in comparing the three fields of law.

      Although patterns of dictionary usage were mostly similar for the three fields, there were some notable differences, and it was generally opinions in criminal cases that diverged from the two other fields. The proportion of majority opinions citing dictionaries was distinctly higher in criminal law, overall and increasingly so over our three periods. In the cases that cited dictionaries, the average number of words for which dictionaries were used was highest in criminal law. The Justices also cited general dictionaries more frequently in criminal cases than in business and commercial or labor and employment cases.

      As we discuss in Part IV.A, these attributes can be understood in part to reflect the Justices' recognition of the personal stakes involved in criminal cases and the lack of sophisticated knowledge on the part of individuals who become criminal defendants. Yet when they cite dictionaries in their majority opinions, the Justices are a little less likely to use dictionaries published close to the time that a case was filed in criminal law than in the other fields, and they are distinctly more likely in criminal law opinions to cite no dictionaries that were contemporaneous with either the enactment of a statute or the filing of a case. (177)

      Across the three fields of law, our data add to the evidence from other studies (178) that the Justices increasingly cite definitions of statutory language in their opinions. Some Justices are more likely to use dictionaries than others, but there has been a general movement toward dictionary use, so that the Justices differ less in their frequency of dictionary citation in the Roberts Court than they did in the two eras of the Rehnquist Court that we have analyzed. Nor do differences in Justices' frequency of dictionary use show an ideological division. This pattern is very different from the increasing divergence among the Justices in the use of legislative history, a divergence that falls largely along ideological lines. (179)

      At the same time, our analysis of opinions that cite dictionaries paints a picture of dictionary use that is more casual and arbitrary than principled or systematic. To begin with, even in an era in which dictionary use has become quite common in statutory interpretation cases, Justices often do not cite dictionaries in their opinions for the Court. In most of these cases, there likely were one or more terms for which dictionary definitions might well have been relevant. Moreover, in cases in which the Justices do cite dictionary definitions for one or more terms, we found that briefs for the parties and for the federal government as amicus frequently used the dictionary to define terms for which the Court's opinion did not cite a dictionary. (180) This limited overlap between the words for which dictionaries were invoked in the briefs and the words cited to dictionaries in the majority opinion underscores the arbitrariness of the Court's dictionary use.

      Perhaps more telling, the Justices also seem to be casual and arbitrary when they do turn to dictionaries to define statutory language. They nearly always use a small number of dictionaries to ascertain the meaning of that term--typically, one or two. Their choices of dictionaries differ from case to case; they frequently substitute their own choices for those cited in briefs to define the same terms; and they do not adopt consistent practices in aligning the publication dates of the dictionaries they cite either with the dates of statutory enactment or with the dates on which the cases before them were filed.

      The combination of the small number of dictionaries typically employed to define a word and the absence of a consistent practice in selecting those dictionaries is striking. The Justices' choices in citing dictionary definitions seem to be largely ad hoc, based on the appeal of particular dictionaries in particular cases. (181) Such ad hoc usage strongly suggests that definitions are being invoked in support of Justices' pre-existing conceptions of reasonable meanings for words rather than serving as independent guides to judgment about those meanings.

      To return to a metaphor that we employed earlier, (182) the image of legislative history that has been ascribed to Judge Harold Leventhal seems to apply powerfully to dictionary usage. As reported by Justice Scalia, Leventhal spoke of "use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." (183) Leventhal was underlining the selectivity that can take place in choices of legislative history materials to support a judge's preferred interpretation of a statute.

      One of us has argued that the existence of a hierarchy of legislative history sources, tied to the structure of congressional law making and long recognized in Supreme Court opinions, operates as a constraint on judicial selectivity, (184) But insofar as...