LawProse Lesson #246: Last-Antecedent Canon vs. Series-Qualifier Canon.

Textualism remains the primary interpretive method used by most American judges. On Tuesday of last week, the United States Supreme Court issued two of its most thoroughly textualist opinions ever: a majority opinion by Sotomayor J. and a dissent by Kagan J. Both are marked by exceedingly close and lengthy analysis of the text. The issue is the meaning of this statutory language: “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” ● The majority’s reading applies the last-antecedent canon. (The involving phrase modifies only abusive sexual conduct.) ● The dissent’s reading applies the series-qualifier canon. (The involving phrase modifies all three crimes in the series.) Both opinions impressively engage in minute parsing of the language and structure of the statute, and both cite the Scalia–Garner book Reading Law (now the most cited treatise in Supreme Court opinions). How would Scalia J. have ruled? We believe he’d have joined the 6–2 dissent, making it 6–3, because of Justice Kagan’s virtuoso analysis of the text and her invocation of the rule of lenity. In any event, for syntax nerds the opinions are a sheer joy to read—good analysis on both sides. You’ll find them here in Lockhart v. United States. Further reading: Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 144–51 (2012).