Solicitor Generall Verrilli looked to the 1787-definition of “recess,” which happens to be the same meaning as today.
GENERAL VERRILLI: Well, but the problem with the pro forma sessions, I think, Justice Kennedy, is in thinking about the length of the recess. The recess, we would submit, and this is based on the formal dictionary definition of “recess” at the time of the founding and now, which is “a suspension of business,” the recess was from January 3 when the session started until January 23.
He made the same point later.
GENERAL VERRILLI: No, I don’t think so, because the dictionary definition then and now of recess is a suspension of business. And you could have recesses of that kind, suspensions of business within sessions.
Justice Kagan went back to the Oxford English Dictionary from the time to look up “happens.”
But if, you know, given all the statements in the founding period itself about how this is ambiguous and it might have two meanings, if you look at the dictionaries of that time — so I went back and I looked at the Oxford English Dictionary, and one of the definitions of “happens” there is “chance to be,” essentially the exact same definition that Thomas Jefferson said made this ambiguous. And we would never use “happens” in that way now. If you look at the examples that the Oxford English gives, they’re laughable. Nobody would ever say that now. But it just suggested to me that maybe what we think is pretty clear is only pretty clear because one meaning of happens has, you know, over 200 years lapsed.
And of course Scalia and Breyer had to chime in:
JUSTICE SCALIA: I — I think “happens” continues to mean “chances to be.” We still use it that way. But we only use it that way when it is followed by an infinitive. “I happened to see him,” it means a chance that I saw him. Or — you know, the 9/11, the destruction of the Twin Towers happened to occur on 9/11. But you wouldn’t say — you wouldn’t say it happened on — on 9/13, simply because it continued to be destroyed. I don’t know what the OED examples that Justice Kagan referred to were, but I bet they — they used “happen” followed by an infinitive, and I think we still use it that way.
JUSTICE KAGAN: You know, I don’t remember them exactly. I just remember kind of laughing at them, as things that - (Laughter.)
JUSTICE BREYER: Actually, I think I remember what they were -
JUSTICE KAGAN: — nobody would say -
JUSTICE BREYER: — and they were 1483 and 1490-something, and then there was an asterisk that said “obsolete.”