By Maxine Malvar, Staff Writer
Photo courtesy of unsplash.com
Ascertaining the precise meaning of words that make up legal statutes has plagued everyone from Suits fans trying to parse “legalese” to judges writing opinions in the highest court in the land. And though approaches for defining words have varied widely in that latter group, there is one method gaining ground with concerning speed: dictionaries.
Some scholars say that the Court’s use of dictionaries has devolved from a touchstone to a crutch.[1] Before 1864, the Court referenced dictionaries as an authority three times.[2] A 2014 study in the Yale Law Journal analyzed dictionary usage in every Court opinion from 1950 to 2010 and found that by the 1950s, the Court was citing dictionaries in about 4% of their opinions.[3] This trend jumped exponentially from the 1980s to the 1990s, spiking from 7% to 21%. By the 2000s, the Court was referring to dictionaries in nearly a third of their opinions.
The same study notes that no single event fully explains this exponential growth, but many legal scholars draw a connection between increased dictionary usage and the rising popularity of textualist approaches to statutory interpretation.[4] Textualism seeks to promote neutral interpretation by limiting judges to the words within a statute, ideally inhibiting them from inserting their preferences into their interpretations. Textualists also show a strong commitment to the “ordinary meaning” canon of construction, which states that where a statutory term is left undefined, the court should give the word its ordinary meaning. Since these beliefs coalesce into a diligent adherence to the objective, ordinary meaning of statutory verbiage, a proclivity for dictionary use can be understandable. However, even the editor-at-large of the Oxford English Dictionary, Jesse Sheidlower, finds that it is “probably wrong, in almost all situations, to use a dictionary in the courtroom.”[5] Three recent Court trends exemplify his concerns.
First, since there is no standardization regarding dictionary use, the Court’s employment of these resources has been shockingly inconsistent on several fronts. Dictionaries exist on a myriad of dichotomies: prescriptive versus descriptive, general versus legal, collegiate versus abridged. A 2013 study of about 150 opinions from 1986 to 2011 found that in 117 majority opinions, the Court varied in number and type of dictionaries cited.[6] In this set, 152 words were defined, but 64% of those instances only relied on one dictionary definition.[7] Another 21% cited two dictionaries, and only 3% cited more than three.[8] Additionally, Justices oscillated between legal and general dictionaries with no clear directive. For example, Black’s Law Dictionary, which derives its definitions from court decisions/relies on judicial opinions as its primary citation source, was consulted for legal terminology, like “motion” and “felony,” but also for more common words, like “use” and “occur.”[9]
Second, if the Court seeks to adhere to objective, ordinary meanings, scholars say dictionaries are unfit for this purpose because the breadth of dictionaries can enable cherry-picking.[10] Currently, no guidelines exist pertaining to the type of dictionary that must be used in certain situations, nor does the Court provide any rationale for their chosen reference, despite the weighty ramifications that may follow. In Kucana v. Holder, the Court’s ruling hinged partially upon the meaning of the word “specified.”[11] The petitioner argued that “specified” was not synonymous with “implied” or “anticipated,” and to do so, they provided a definition of “specified” from Webster’s New Collegiate Dictionary that was notably absent of the synonyms in contention.[12] However, they failed to account (or, perhaps, intentionally sought out) the fact that collegiate dictionaries are abridged in order to enhance their portability. The contemporaneous, unabridged Webster did, in fact, contain both “implied” and “anticipated” as definitions for “specified.”[13]
Lastly, dictionaries have a disproportionate impact on the Court’s reasoning. In another survey of majority opinions, researchers from the Yale Law Journal found that when the Court did invoke dictionary definitions, Justices relied on these definitions to justify their results four-fifths of the time.[14] This concerning trend seems to be what Judge Learned Hand warned against in a 1945 opinion: “It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”[15]
Despite these concerning trends, legal scholars resist suggesting that the Court dispense with dictionaries altogether.[16] Rather, they provide caveats against treating dictionaries as entirely objective or decisively authoritative and either promote a disciplined, standardized use or suggest limiting their use to technical, unfamiliar, or foreign words. Regardless, let’s just hope that the next time you Google a word for your homework, none of the Supreme Court Justices are doing the same.
[1] https://www.jstor.org/stable/pdf/20787386.pdf?refreqid=fastly-default%3A268dcb1f57b9d3b17eac8e309e0aac9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=&acceptTC=1
[2] Id.
[3] https://www.yalelawjournal.org/article/supreme-court-and-circuit-court-dictionary-use
[4] Id.
[5] https://www.nytimes.com/2011/06/14/us/14bar.html
[6] https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3503&context=wmlr
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] https://www.jstor.org/stable/pdf/20787386.pdf?refreqid=fastly-default%3A268dcb1f57b9d3b17eac8e309e0aac9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=&acceptTC=1
[12] Id.
[13] Id.
[14] https://www.yalelawjournal.org/forum/dictionaries-2.0-exploring-the-gap-between-the-supreme-court-and-courts-of-appeals#_ftnref1
[15] https://www.nytimes.com/2011/06/14/us/14bar.html
[16] https://www.jstor.org/stable/pdf/20787386.pdf?refreqid=fastly-default%3A268dcb1f57b9d3b17eac8e309e0aac9f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=&acceptTC=1
