OBSESSIVE OVER THE POSSESSIVE AT THE SUPREME COURT OF THE UNITED STATES: EXPLORING SCOTUS'/SCOTUS'S USE OF POSSESSIVE APOSTROPHES.

AuthorBlack, Ryan C.

Recently, Johnson co-authored an article for this journal about Justice Clarence Thomas. (1) Throughout the text, he referred to opinions, dissents, concurrences, and oral argument behavior of Justice Thomas. As he worked through drafts, he and his co-authors discussed how they would refer to the aforementioned opinions and behavior of Justice Thomas.

From a purely stylistic perspective, the present article probably should have been rejected by The Journal of Appellate Practice and Process editor based simply on the horrific writing in the opening paragraph, even though we purposefully tied ourselves in phrasing knots to avoid the possessive form of Thomas. (2) This choice, however, would not have been tenable for the entire 15,000-word essay to which we refer. As such, Johnson and his co-authors were left with two choices to make their writing smoother and easier for readers to digest: denote the possessive with an apostrophe at the end of his name (i.e., Thomas' dissent) or, alternatively, add a "bonus s" to make it Thomas's.

The authors settled on the former choice with minimal discussion. However, when they sent the final draft to The Journal editor she queried as to why they made this stylistic choice. (3) Sadly, they did not have an altogether compelling answer for her beyond that it simply seemed more aesthetically pleasing to their eyes. But this exchange with the editor, coupled with the dog days of the 2020 pandemic summer, led us to ponder how the main subjects of our research--U.S. Supreme Court Justices--deal with this very question. And, as quantitatively inclined students of the Court, it struck us as a decidedly empirical (if not an actually interesting) question.

Thus opened the rabbit hole into which we promptly jumped and which, having emerged sometime later, puts us in a position to provide an embarrassingly comprehensive accounting of how the country's top legal minds deal with our query. That is, in the pages that follow, we explore whether Supreme Court Justices, when using possessive nouns (proper or common) that end in s (e.g., Thomas or amicus), utilize a single s (i.e., s') or a double s (i.e., s's). We assume their choice, as the nation's highest court, must hold some weight--even among career grammaticians and law review editors, alike!

To gain traction on our question of interest, we first consult several general and legal style guides as well as two anecdotal accounts of Justices' possessive s usage. From there, we throw some real-world data at the question. Specifically, we analyze more than seventy terms' worth of Supreme Court opinions to determine how the Justices respond to this clearly critically important debate within the overlapping fields of grammar and law.

  1. GUIDANCE ON SINGLE S (S') AND DOUBLE S (S'S) USAGE

    Though it was Justice Thomas (and one keen-eyed, grammatically opinionated editor) who motivated our initial inquiry, his name is hardly alone in spurring on our project. Throughout the Court's history, fully sixteen of the 115 total individuals to serve as a Justice have a surname ending in the letter s. (4) This helps motivate the importance of an otherwise purely academic inquiry because Justices regularly refer to their colleagues' opinions in their own writing. And, when they do, they also have a choice to write "J. Thomas dissenting" or to stir up trouble with grammaticians by using a possessive: "In Justice Douglas'(s) dissent." What is more, a host of nouns ending in s regularly appear in opinions, including parties (often states) and other participants--amicus, Kansas, Arkansas, Texas, Illinois, and Massachusetts to name a few.

    Consider Kahler v. Kansas, (5) decided during the 2020 October Term. In her majority opinion, Justice Elena Kagan used the double s when she referred to Kansas: "This case is about Kansas's treatment of a criminal defendant's insanity claim." (6) In contrast, Justice Stephen Breyer used the single s: "Under Kansas' rule, it can convict the second but not the first." (7) Which usage is correct? Do the Justices follow a universal rule of possessives, or do they vary in their usage? To answer these questions, we turn to style guides--general grammatical ones and ones specific to the law and to the U.S. Supreme Court.

    We begin our search by examining general rules of grammar. The Holy Grail of guides, The Elements of Style (commonly known as Strunk and White--as in E. B. White of Charlotte's Web fame), comes down strongly on the side of using the double s. (8) Specifically, it argues writers should always add an 's to a possessive singular even if the last letter is, itself, an s (e.g., Holmes's). (9) For our purposes, Strunk and White's treatise comports with Justice Kagan's usage in Kahler.

    But not all style guides agree on the hard-and-fast double s rule. In fact, the majority of guides add nuance to the single s versus double s debate. (10) For instance, the Modern Language Association (MLA) notes that "when a word ending in s is the same in the plural as it is in the singular, you just add an apostrophe: scissors' blades [or] identity politics' critics." (11) This certainly seems to contradict Elements, but when it comes to proper nouns MLA style actually agrees with Elements. That is, proper nouns ending in s, and that are singular, follow the general rule of adding 's. For example, a writer should quote Diogenes's theories or, in the case of the Supreme Court, Chief Justice Hughes's opinions.

    The Chicago Manual of Style adds even more distinctions, devoting a whopping four subsections of its guide to possessive nouns (we were not joking about the rabbit hole). (12) However, its general rule is that "[p]lural forms ending in s take an apostrophe without a second s, whether the word is singular or plural: The United States' reputation. But singular forms like Kansas take the second s, and thus it's Kansas's." (13) The Chicago Manual adds exceptions for words that end in a silent s (Camus becomes Camus's), for classical proper names (Ganges becomes Ganges's), and for singular nouns that end in s (politics becomes politics'). The New York Times Manual of Style and Usage is largely in line with the Chicago Manual but recommends omitting the s "when a word ends in two sibilant sounds (the ch, j, s, sh, ts, or z sounds) separated only by a vowel sound: Kansas' Governor; Texas' population; Moses' behalf." (14)

    But what of legal grammatical advice? Do style guides that govern most academic legal writing--law reviews--take a position on the single s versus double s debate? As it turns out, not so much. (15) In a search for law review style guides we came upon only...

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