In today’s NYT, Adam Liptak reports on a new study by CUNY’s Jeffrey L. Kirchmeier and Arizona superior court judge Samuel Thumma, published in the Marquette Law Review, documenting the increasing use of dictionaries by Supreme Court justices in their opinions.
In May alone, the justices cited dictionaries in eight cases to determine what legislators had meant when they used words like “prevent,” “delay” and “report.” Over the years, justices have looked up both perfectly ordinary words (“now,” “also,” “any,” “if”) and ones you might think they would know better than the next guy (“attorney,” “common law”). . . .
In the last two decades, the use of dictionaries at the Supreme Court has been booming.
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.
Justices Oliver Wendell Holmes Jr., Benjamin N. Cardozo and Louis D. Brandeis managed to make it through distinguished careers on the Supreme Court without citing dictionaries. . . .
The justices have cited more than 120 dictionaries, which is suggestive of cherry picking.
Cherry picking dictionaries? Hmmmm . . .
In Gonzales v. Raich, Justice Thomas notes (in dissent) that Justice Stevens’ majority “defines economic activity in the broadest possible terms as the ‘the production, distribution, and consumption of commodities,’” relying on a 1966 dictionary. Why 1966? Good question. As Justice Thomas commented in footnote 7 of his dissent:
Other dictionaries do not define the term “economic” as broadly as the majority does. See, e.g., The American Heritage Dictionary of the English Language 583 (3d ed. 1992) (defining “economic” as “[o]f or relating to the production, development, and management of material wealth, as of a country, household, or business enterprise” (emphasis added)). The majority does not explain why it selects a remarkably expansive 40-year-old definition.