Wednesday, January 9, 2013
James J. Brudney (pictured) and Lawrence Baum (Fordham University School of Law and Ohio State University (OSU) - Department of Political Science) have posted Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras on SSRN. Here is the 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. Among our findings are (a) while textualist justices are the highest dictionary users, purposivist justices invoke dictionary definitions with comparable frequency; (b) dictionary use is especially heavy in the criminal law area, serving what we describe as a Notice function; (c) 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 conducts a detailed doctrinal review, leading to 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 persuasive 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 (i) how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and (ii) 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 heuristic and 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. Further, the justices’ subjective dictionary culture is likely to mislead lawyers faced with the responsibility to construct arguments for the justices to review. The Article concludes by offering a three-step plan for the Court to develop a healthier approach to its dictionary habit.