Chief Justice Webster

14 Aug 22

An exposition on the use and abuse of dictionaries in recent US Supreme Court jurisprudence, by Mark A. Lemley, Chief Justice Webster, 106 Iowa L. Rev. 299 (2020):

The Supreme Court has a love affair with the dictionary. Half of its decisions in the 2018 Term cited a dictionary, often as the primary or exclusive means of defining a statutory term. The Court regularly upends decades of precedent and ignores congressional intent (and sometimes common sense) in favor of a chosen dictionary definition. The Solicitor General may long have been the “tenth Justice,” but in the twenty-first century the Chief Justice of the Supreme Court may as well be, not John Roberts, but Noah Webster.

The Court’s obsession with dictionaries as the arbiter of statutory meaning is a recent phenomenon. A review of cases from 50 or 100 years ago reveals no such focus. It’s not that dictionaries didn’t exist then; they did. It’s not that the Court never turned to them. But it did so rarely, and then only as a last resort after turning to more traditional sources to ascertain the meaning of a term.

The Court’s increased use of dictionaries may stem from the idea—very much in vogue today in some quarters—that courts are not to make law but simply “call balls and strikes,” as one overused metaphor has it. Looking up a term in the dictionary can seem like the height of judicial restraint. A court that does so isn’t consciously or subconsciously imposing its own ideology on a statute; it’s just turning to a trusted neutral source.

But that impression is misleading. Dictionaries are not the neutral, commonly-accepted panacea the Court seems to suppose. …

Dictionaries aren’t designed to give what courts want: a single definitive meaning that defines what the law is. Dictionaries deliberately define terms expansively and in self-contradictory ways, seeking to capture all possible meanings of a term, not to pick among them. They don’t take legal nuance into account, and they can’t incorporate a background pattern of behavior or centuries of precedent against which Congress may have adopted a term. The use of legislative history is often attacked as a cover for judicial activism, but in fact it is the dictionary that provides the easiest cover for activist decisions that depart from congressional intent and precedent. Dictionaries can literally justify any plausible meaning of a term. Courts that turn to them are doing exactly what they purport to disdain: picking the meaning of a statute based on their own personal preferences. …