Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras
Brudney, James J., Baum, Lawrence, William and Mary Law Review
3. Briefs and Opinions
As with other resources for interpretation of statutes, the Justices often receive inputs from the litigants in the form of dictionary definitions of statutory terms. To probe the relationship between those inputs and the definitions that Justices ultimately cite in their opinions, we analyzed a sample of sixteen of the 117 cases in our study. (168) For each case, we compared the words defined and the dictionaries cited in briefs for the parties and for the United States as an amicus, when the Federal Government participated in that role, with the dictionaries cited in the Court's opinion. We treated two dictionaries as the same if they were labeled as the same edition even if they were published at different times.
We found only a limited match between the use of dictionaries in the briefs and their use in the Court's opinion. Of the thirty-six words for which a dictionary was used in either a brief or a majority opinion, (169) only thirteen (36 percent) were defined with a dictionary in both the brief and the opinion. The disjunction ran in both directions. Among the thirty-one words with dictionary citations in a brief, only thirteen (42 percent) had dictionary citations in the Court's opinion; among the eighteen words with dictionary citations in the opinion, five (28 percent) did not have such citations in a brief.
When a dictionary definition was used for the same word in the Court opinion and one or more briefs, the specific dictionaries can be compared. Of the thirteen words in question, the opinion had at least one dictionary in common with the briefs for ten. But for eight of the words, the opinion cited a dictionary that was mentioned in none of the briefs. And for all but one of the words, a brief cited a dictionary that the opinion did not. For only one of the thirteen words was there a full match between briefs and opinion, with each citing the same single dictionary.
We would not expect the use of dictionaries in the briefs and their use in the Court's opinion to be exactly the same in all cases any more than we would expect that with other interpretive resources. Still, the wide divergence between the two in the words defined and the dictionaries used to define them is striking. Like other evidence we have discussed, this divergence suggests that both the decision whether to employ dictionaries to help define a particular word and the choice of dictionaries to cite are primarily case-specific rather than the result of systematic judgments. (170)
4. Date of Publication
As we have discussed, Justices might have preferences for dictionaries published near the time at which a statute was enacted or the time when the controversy before the Court was initiated. (171) In turn, those preferences might reflect the Justices' broader approaches to statutory interpretation.
We probed these preferences by identifying the years in which dictionaries were published, statutes were enacted, and Supreme Court cases were initially filed in court. If the publication date was within six years of enactment, we counted the dictionary as proximate to enactment. (172) We used the same six-year rule for the time of initiation for the controversy, which we defined as the year that the case that ultimately came before the Court was filed. If any dictionary cited in an opinion was contemporaneous in terms of enactment date, the opinion was treated as citing an enactment-date dictionary; again, we used the same approach with respect to filing date.
For the Court as a whole, 40 percent of the majority opinions included at least one citation to a dictionary published near the time of enactment, and 45 percent included a citation to a dictionary published near the time the case was filed. Altogether, 11 percent of the opinions used dictionaries that met both of those criteria, (173) and 26 percent did not use a dictionary that met either criterion. …