Something to Think About: Justices Using Dictionaries

Adam Liptak explores the growing use of dictionaries by U.S. Supreme Court Justices in “Justices Turning More Frequently to Dictionary, and Not Just for Big Words.” Increasingly, justices are turning to dictionaries for definitions that help them decide legal cases:

A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.

This practice, which might seem unobjectionable at first glance, has raised concerns among many legal scholars. Liptak quotes from Learned Hand, one of the most highly regarded judges of the twentieth century:

“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.”

In some cases, the use of historical dictionaries makes sense:

Justices who try to discern the original meaning of the Constitution sometimes consult older dictionaries, which makes sense given that usage may have shifted over time.

In a 1995 concurrence, for instance, Justice Clarence Thomas looked to dictionaries from 1773, 1789 and 1796 to determine what the framers of the Constitution meant by “commerce,” a question now in play in the challenges to the recent health care law. (They meant, Justice Thomas found, “selling, buying and bartering, as well as transporting for these purposes.”)

Liptak’s article, which appears in the New York Times, raises an curious and ironic way in which the Times might be influencing Supreme Court decisions:

The case for using dictionaries to determine the meaning of modern statutes is weaker, in part because the materials consulted by the people who compile definitions can skew the results. A 1988 survey of the lexicographic staffs of five publishers concluded that “the ‘polite press,’ with The New York Times at its pinnacle” is “the single most powerful influence in constituting the record of the English lexicon.”

A decade later, Ellen P. Aprill, who teaches at Loyola Law School in Los Angeles, considered the implications of that finding in an article on “dictionary shopping in the Supreme Court.”

“It may also be a surprise to the Supreme Court justices who look to dictionaries as authorities in construing statutes,” Ms. Aprill wrote in the Arizona State Law Journal, “that in good measure they are interpreting law according to The New York Times.”

Now that is something to think about.