Think grammar is for fuddy-duddies, dictionaries are only used by people who can’t grasp Wikipedia, and the difference between “its” and “it’s” will never change your life? Well, you may be right. But don’t write off the nuances of the English language just yet. Or at least read this Atlantic piece from Garrett Epps (whose work you should always read, and not just because he happens to be the father of my childhood best friend) before you do. Writing about the recent circuit court decision that invalidated President Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau, Epps describes exactly how the justices came to their decision — and how another panel of judges came to one precisely the opposite. It’s a case study in the continued relevance of words and their meanings.
The ruling by the D.C. Circuit Court of Appeals was sweeping; it went beyond simply rejecting the president’s power to appoint officials during “pro forma” (read: fake) sessions of the Senate, a power which Obama had used to install nominees that Republicans, hostile to the sheer existence of the labor board and the consumer bureau, refused to confirm. Instead of ruling narrowly, the justices tackled a question that hadn’t even been asked, and decided that the Constitution not only prohibits the president from appointing officials when the Senate is officially in session (and thus ostensibly able to carry out its duty to “advise and consent”) but also limits appointments to the single recess between congressional sessions, theoretically invalidating hundreds of years of appointments that occurred during inter-session breaks. Going even further, the court ruled that the positions in question must actually come open during the recess; the president can’t use a break to fill previously vacant posts. Though this all sounds like ivory-tower thought games, it has real world consequences: If you’re a homeowner trying to get a mortgage, the disclosure requirements laid out by the CFBP are now up in the air. If you want to take your boss to court for stinting on your paycheck or sacking you for an errant Facebook post, your case may now rest on fuzzy laws.
So where does good English fit into all this? As Epps writes, it all hinges on the word “the.” The clause in the Constitution allowing recess appointments dictates that”[t]he President shall have power to fill up all vacancies that may happen during the recess of the Senate.” The D.C. Circuit is stacked with justices who, in the strict originalist mold of Antonin Scalia, make decisions by parsing every word and intention (no matter how ultimately unknowable — really, what would Thomas Jefferson have thought of violent video games?) of the Founders, and they wondered: Does the word “the” in “the recess” restrict appointments to “the one and only recess between sessions of Congress? How did the justices decide? They consulted 1755 edition of Samuel Johnson’s Dictionary of the English Language, whose entry for “the” is short and sweet: “The, article, denoting a particular thing.” Epps explains:
“The recess of the Senate,” therefore, must mean one and only one “recess” per Senate — the unique one between sessions. To any living speaker of English, the word “the” can also denote one instance of a recurring but definite phenomenon. Thus, for example, when someone speaks of “the hours of darkness,” very few of us would interpret those words as referring to the one night of the year when darkness would be longest.
Yes, making monumental legal decisions by thumbing through a period dictionary does seem like a cop out. It is indeed too clever by half. But the truly ridiculous thing is that another court, the 11th Circuit, also used a dictionary — a different dictionary — in 2004 to draw a completely opposite conclusion about the recess clause. Epps again, writing about the 11th Circuit case:
In Evans v. Stephens, that panel wrote, “We do not agree that the Framers’ use of the term ‘the’ unambiguously points to the single recess that comes at the end of a Session.” It drew its evidence from the Oxford English Dictionary.
OED, written over the past century and a half,is the most complete historical dictionary of the language ever assembled; it draws on examples of usage dating back before 1000 C.E. Its entry on “the” is nearly 10,000 words long (Johnson’s, remember, is six). Here’s the relevant language: “Referring to a term used generically or universally,” as in “the pen is mightier than the sword,” or “with names of days of the week, as on the Monday, i.e. on Monday of any or every week, on Mondays generally.” The entry includes examples of that usage going back to 1340.
Why was the OED not good enough for the D.C. Circuit? Because, it seems, the OED — which has been cited by faithful Supreme Court originalists for decades when it suits them — is a “modern dictionary.”
And you thought that dictionaries were going the way of the phone book!
Epps sees a greater problem here than overuse of reference materials. The contrast between the decision only highlights the flaws in the rigidity of the originalist cause. There is a certain nonsense and refusal to deal with the world as it is in “the idea that one judge can somehow know the ‘real meaning’ of a provision enacted centuries ago, in a world as alien to ours as Narnia.” He continues: “Evidence from the period when a constitutional provision was framed is always relevant to a judicial decision. But so are subsequent caselaw, interpretation by other branches, and simple practicality.”
It turns out, however, that the dictionary has a certain pedigree in the judicial system. Courts have been relying on the old door stop stand-ins for years. An amusing New York Times article from two years ago describes the proliferation of dictionary-reliant Supreme Court decisions:
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.
To cite the example in the Times’ lede, Chief Justice John Roberts used five dictionaries to examine the nuances of the word “of” when he pondered over a patent case. In 2011, to find a precise definition of “prevent,” Stephen Breyer turned to none other than the OED, and in 1995 staunch originalist Clarence Thomas looked up the word “commerce” in three dictionaries — from 1773, 1789 and 1796 — as he puzzled through what the framers may have been thinking.
The article notes that Learned Hand, who is “widely considered the greatest judge never to have served on the Supreme Court,” did not have kind words for dictionary thumpers, writing in 1945 that:
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.
Lexicographers are not huge fans of this development either, and it’s not hard to see why. “The justices have cited more than 120 dictionaries, which is suggestive of cherry picking,” the Times writes, and quotes the editor- at-large of the OED as saying, “It’s easy to stack the deck by finding a definition that does or does not highlight a nuance that you’re interested in.”
Language-lovers and grammarians fighting against the perceived irrelevance of their field may be heartened by such evidence that dictionaries really are a Higher Power. But like all magical instruments, from the Force to the wand wielded by Harry Potter, they should only be used for good, never evil. I’d like to plaster a bumper sticker on the cars of the D.C. Circuit Court members that reads “End Dictionary Abuse!” And I would certainly classify overturning centuries of precedence and infringing on reasonable executive powers as abusive.
It’s enough to make you wish that judges only cracked the Webster’s for benign purposes, like differentiating between, oh, say, “loath” and “loathe.” Because, in a delightful twist of irony, The New Republic reports that the D.C. Circuit’s decision used the wrong form, writing that “We are loathe to overturn the credibility determinations of an ALJ unless they are ‘hopelessly incredible, self contradictory, or patently insupportable.’”
Now that is what a dictionary is good for.