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55 Wm. & Mary L. Rev. 483 (2013-2014)
Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras

handle is hein.journals/wmlr55 and id is 505 raw text is: OASIS OR MIRAGE: THE SUPREME COURT'S THIRST FOR DICTIONARIES IN THE REHNQUIST AND ROBERTS ERAS JAMES J. BRUDNEY* AND LAWRENCE BAuM** ABSTRACT The Supreme Court's use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court's new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court's patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed. The Article then presents an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative * Professor of Law, Fordham University School of Law. ** Professor Emeritus of Political Science, Ohio State University. We are grateful to Ellen Aprill, William Eskridge, Abbe Gluck, Ethan Leib, Richard Posner, Lawrence Solan, and Kevin Stack for helpful comments on an earlier draft. We thank Craig Cagney, Steve Della Fera, Jacob Sayward, and the Fordham Law School Library for valuable research assistance, and Cynthia Lamberty-Cameron for fine secretarial support. Fordham Law School contributed generous financial assistance. 483

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