Liptak on Dictionaries at 1 First Street

June 13th, 2011

Adam Liptak has a sidebar column in the Times about citations to dictionaries in Supreme Court opinions.

There is not really a discussion about textualism/new originalism/original public meaning originalism, which would provide the article in favor of dictionaries, especially if aiming to define a term used at some historical stage but Adam’s point is about right. Judges cite dictionaries favorbale to their case.

Justices Oliver Wendell Holmes Jr., Benjamin N. Cardozo and Louis D. Brandeis managed to make it through distinguished careers on the Supreme Court without citing dictionaries.

Learned Hand, widely considered the greatest judge never to have served on the Supreme Court, cautioned against the mechanical examination of words in isolation.

Eh, not entirely persuasive. Textualism is really a new phenomenon. I wouldn’t expect Holmes to submit himself to a dictionary.

Most famous, in my mind, is Justice Stevens reliance on Webster’s Third International Dictionary in Gonzales v. Raich to define the term “economics.”

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966).

This term I have blogged about dueling dictionaries in Whiting, the use of a dictionary in Schindler v. ex rel Kirk to define the word report, what the appropriate term is for someone who lived in Wyoming, a fight between Scalia and Breyer in Kasten v. Saint-Gobain to define the word filed.