Law professors James Brudney and Lawrence Baum have a new study out on Supreme Court justices’ use of dictionaries in deciding cases. Perhaps not surprisingly to court watchers, they note that the justices almost never used dictionaries prior to the start of the Rehnquist Court, but now use them in as many as one-third of statutory decisions. Although textualist justices invoke dictionaries the most, purposivist justices are not far behind.
Although to the author’s credit, they recognize some proper use for dictionaries when they propose a plan “to develop a healthier approach to [the Court’s] dictionary habit,” the study is generally critical of the justices’ invocation of them. Brudney and Baum note that dictionaries “can confer a deceptive sense of objectivity and legitimacy.” Moreover, they note that justices will frequently cite only one dictionary in an opinion, but cite another dictionary in a different opinion, something they argue may be evidence of justices searching for a definition that might “fit a justice’s conception of what a word should mean.”
In addition to other studies that are critical of the use of dictionaries, judges have also noted problems with dictionaries. Richard Posner has written that “dictionary definitions are acontextual whereas the meaning of sentences depends critically on context.” Even Justice Scalia, the arch-textualist whose time on the Court has coincided with the increased use of dictionaries, wrote in his recent book on statutory interpretation that judges should “take care” when consulting dictionaries, and that certain dictionaries may not define words appropriately. Similarly skeptical of dictionaries are linguists, who tend to believe words lack fixed meanings and are always context-dependent.
But there is a proper role for the dictionary in statutory interpretation. We all use dictionaries in our lives, so we must believe they have some use and can shed some light on what the ordinary understanding of a word is. In writing this post, I consulted a dictionary to see if a certain use of a word was defensible. It therefore seems logical that a judge might consult a dictionary to see if a certain interpretation of a phrase is defensible.
If a judge can show his or her conception of the meaning of a word corresponds to one of its definitions in a dictionary, then it is at least plausible that the judge’s interpretation is correct. Moreover, if a judge consistently uses the same well-respected dictionary (yes, some appear to be more respected than others), he or she can hardly be accused of selectively using dictionaries. Although it might be incorrect for a judge to point to a definition of a word in a single dictionary as conclusive proof that the word means exactly what this particular definition says it means, dictionaries provide a rough approximation for society’s general understanding of what a word means. This can be extremely useful, particularly when interpreting statutes passed decades ago, given that contemporary society’s understanding of a word may be different from the understanding of prior generations.
Perhaps an example from a case can illustrate the potential problems with dictionaries, but also how they can be quite helpful. The statute at issue in MCI v. American Telephone and Telegraph Company gave the FCC the power to “modify” any of the requirements of the statute. The FCC used this power to get rid of a tariff requirement altogether for certain telephone companies. The question for the Court, therefore, was whether the FCC could reasonably interpret the power to “modify” a requirement as the power to get rid of a particular requirement.
Justice Scalia, writing for the Court, said no. One might think “modify” a somewhat vague word. The Court noted, though, that “modify” means to make small changes, not large changes. After all, Scalia explained, most dictionaries defined “modify” to mean, roughly, modest changes. The FCC, however, cited a single dictionary that included, among multiple definitions of “modify,” “to make a basic or important change in.” One might throw up one’s hands at this point and say this just shows dictionaries are subjective, or one can find the definition one wants if one simply looks hard enough at enough dictionaries. But such a reaction would be unwarranted. After all, the unusual definition was found in a single dictionary published forty years after the statute at issue in the case was enacted. If nearly every dictionary, including those from around the time of the passage of the statute, provide roughly the same meaning, then a drastically different interpretation of the word would be improper.
Judges may not have the time to consult numerous dictionaries in every statutory interpretation case. But dictionaries can at the very least prevent interpretations of phrases that are not at all grounded in the text of the statute. They also can provide a rough idea of what vague words mean (particularly since it seems likely that the legislature would consult a dictionary when determining what language to use in critical parts of a statute). Besides, anything that gets justices to focus more closely on the text of a statute has some benefit. Given their potential benefits and that every other tool of statutory interpretation is flawed, that dictionaries can be used inappropriately hardly seems a reason to not consult them at all.