Dictionary: A way to define an argumentJames J. Brudney in The Washington Post, February 03, 2013
By Robert Barnes
For nearly 200 years, Fordham law professor James J. Brudney says, Supreme Court justices rarely needed to pick up a dictionary when interpreting the laws that Congress passed.
But these days, it is an increasingly common occurrence. And not because the words are getting bigger.
In the 10 decisions the court has rendered (to melt down; also, to transmit to another) this term, two required the use of a dictionary. In one, justices looked up the definition of “transportation,” and, in the other, the word “add.”
The justices are not actually puzzled, Brudney and co-author Lawrence Baum of Ohio State University argue in a new study about dictionary use at the court. Instead, the nine brandish definitions as a way to dress up their subjective decisions with an “objective veneer,” they say.
The professors write:
“The justices do not consult dictionaries to discover previously unknown word meanings but rather to choose a ‘correct’ word meaning from various options.
“Although this process has involved considerable judicial discretion, dictionary definitions as invoked by the court can confer a deceptive sense of objectivity and legitimacy even when they are a minor or peripheral contributor to the result.”
Often the Supreme Court’s work in interpreting statutes can come down to the meaning of a single word, and research into how the justices reach that goal are catnip to the law professors, practitioners and journalists who analyze the court.
Brudney and Baum shared their findings on SCOTUSblog, the bulletin board for court-watchers, and their work builds on previous studies that have looked at the court’s dictionary use.
None of the studies are particularly complimentary of the practice, which Brudney said picked up steam during the years William H. Rehnquist was chief justice and continues on the Roberts court. Each of the current members of the court has written opinions that turn to the dictionary for the meaning of an often common word.
Brudney and Baum theorize that the increased use of dictionaries during the Rehnquist years may have been seen as an “oasis” (a fertile or green area in an arid region; also, something that provides refuge, relief, or pleasant contrast) for justices against charges of judicial activism.
“The sharp increase occurred during a period when the court’s statutory decisions were being overridden with unusual frequency and the justices were persistently criticized for ideological decisionmaking and a lack of judicial restraint,” the professors write.
But they and others — including lexicographers — contend that dictionaries are of limited value in deciphering statutes.
Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit wrote last year that “dictionary definitions are acontextual whereas the meaning of sentences depends critically on context, including all sorts of background understandings.”
Moreover, the professors found, justices often cite only one dictionary, and often not the same one from opinion to opinion.
“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 dictionaries to determine that meaning,” Brudney and Baum write.
For instance, in footnote 154 of their rather exhaustive 94-page study, the professors note that Justice Antonin Scalia referred to two different dictionaries in two majority opinions in 2008. In one, he used the American Heritage Dictionary to help define the word “promote.” In the second, he employed Webster’s Second New International Dictionary to help define the word “promotes.”
But Brudney said that at least Scalia has spoken up about how and when courts should rely on dictionaries, while the rest of the court has remained rather silent on the practice. They note that is different from other debates about the tools of statutory interpretation, for instance, whether the court should consider the legislative history of an act or simply the text.
In his recent book with Bryan A. Garner, “Reading Law: The Interpretation of Legal Texts,” Scalia cautions courts to “take care.”
He notes that dictionary definitions state the core meaning of a word, not the “periphery.” He urges the use of context, and an examination of the preface as to how the dictionary has been assembled.
And, of course, there is the dictionary itself.
Brudney and Baum discovered Scalia to be something of a Webster’s Second New International man, quoting it most often in his opinions. Justice Stephen G. Breyer has a fondness for the Oxford English Dictionary. Retired Justice Sandra Day O’Connor favored Webster’s Third, as has Justice Samuel A. Alito Jr.
But when Scalia references Webster’s Third in an opinion, he might be giving license (permission to act; also a document, plate, or tag evidencing a license granted) to those who suspect he has gone fishing for a definition that meets his liking.
In their book, Scalia and Garner call the volume “notoriously permissive.”