LawProse Lesson 426: The Supreme Court on Grammar and Meaning

LawProse Lesson 426: The Supreme Court on Grammar and Meaning

 Given that the law is a profession whose sole tool is language, it’s hardly surprising that the legal profession—especially those at the top of it—are fixated on it. The most penetrating scholarly commentators discuss legal language astutely. The same is true of judges. If you examine U.S. Supreme Court opinions, you’ll find close examination of grammar and meaning. Here is the barest sampling of recent examples:

  • “Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun ‘crab’ refers variously to a crustacean and a type of apple, while the related adjective ‘crabbed’ can refer to handwriting that is ‘difficult to read,’ Webster’s Third New International Dictionary 527 (2002); ‘corny’ can mean ‘using familiar and stereotyped formulas believed to appeal to the unsophisticated,’ id., at 509, which has little to do with ‘corn,’ id., at 507 (‘the seeds of any of the cereal grasses used for food’); and while ‘crank’ is ‘a part of an axis bent at right angles,’ ‘cranky’ can mean ‘given to fretful fussiness,’ id., at 530.” FCC v. AT&T Inc., 562 U.S. 397, 402–03 (2011).
  • “[W]e will not convert nouns to adjectives and vice versa.” Terry v. U.S., 141 S.Ct. 1858, 1863 (2021).
  • “Paragraph (1) provides that the Secretary ‘shall take’ into custody any ‘alien’ having certain characteristics and that the Secretary must do this ‘when the alien is released’ from criminal custody. The critical parts of the provision consist of a verb (‘shall take’), an adverbial clause (‘when … released’), a noun (‘alien’), and a series of adjectival clauses (‘who … is inadmissible,’ ‘who … is deportable,’ etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense ‘describ[e]’) the noun ‘alien’ or that the adverbial clause ‘when … released’ modifies the verb ‘shall take.’ And since an adverb cannot modify a noun, the ‘when released’ clause cannot modify ‘alien.’ Again, what modifies (and in that sense ‘describe[s]’) the noun ‘alien’ are the adjectival clauses that appear in subparagraphs (A)–(D).” Nielsen v. Preap, 139 S.Ct. 954, 965 (2019).
  • “The ordinary meaning of the word ‘occasion’ [is] essentially an episode or event. . . . . [M]ultiple crimes may occur on one occasion even if not at the same moment. Wooden’s night of crime is a perfect case in point. His one-after-another-after-another burglary of ten units in a single storage facility occurred on one ‘occasion,’ under a natural construction of that term . . . . Consider first how an ordinary person (a reporter; a police officer; yes, even a lawyer) might describe Wooden’s ten burglaries—and how she would not. The observer might say: ‘On one occasion, Wooden burglarized ten units in a storage facility.’ By contrast, she would never say: ‘On ten occasions, Wooden burglarized a unit in the facility.’ Nor would she say anything like: ‘On one occasion, Wooden burglarized a storage unit; on a second occasion, he burglarized another unit; on a third occasion, he burglarized yet another; and so on.’ She would, using language in its normal way, group his entries into the storage units, even though not simultaneous, all together—as happening on a single occasion, rather than on ten ‘occasions different from one another.’” Wooden v. U.S., 595 U.S. 360, 366–67, 142 S.Ct. 1063, 1069 (2022).      

        What does all this suggest? First, lawyers should know something about grammar and usage. (Yet “most lawyers,” in the words of Charles Alan Wright, “do not understand the basic principles of English usage.”) Second, law offices should be well stocked with dictionaries and usage books. Third, an argument that doesn’t focus on the crucial words of a statute, regulation, or contract—and doesn’t cite relevant authorities in support—is probably flawed.

        Further reading:
        Garner’s Modern English Usage (Oxford, 5th ed. 2021).
        Garner’s Dictionary of Legal Usage (Oxford, 3d ed. 2011).

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