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With Scalia Gone, Who’s Wearing the Thick Grammarian’s Spectacles Now?
Lawrence Solan
In
1991, the Supreme Court decided West
Virginia University Hospitals v. Casey (opinions here).The case determined that the right to recover
“a reasonable attorney’s fee” if successful in a civil rights case against a
state did not include the right to recover the cost of expert witness
services.Writing for a majority of six,
Justice Scalia focused on the importance of interpreting the United States Code
as a coherent body of law, listing many examples of fee shifting statutes that
do mention expert fees, and inferring that their absence in the civil rights
law implies that Congress did not intend for the winning party to recover them. Justice
Stevens dissented.The fee-shifting
statute was actually a congressional reaction to an earlier stingy ruling by
the Supreme Court.Offering once again
the least generous interpretation of the civil rights law, Stevens argued,
would undermine the congressional effort to override the Court.Stevens then noted that congressional
overrides of the Supreme Court come primarily when “the Court has put on its thick grammarian's spectacles
and ignored the available evidence of congressional purpose and the teaching of
prior cases construing a statute.”And that is exactly what happened.Congress quickly overrode this decision too,
making it clear that expert fees were to be recoverable by a winning plaintiff
in a civil rights case.
Now
that Justice Scalia is gone, who has the spectacles?We got a surprising hint last week when
Justices Sotomayor and Kagan fought over the application of grammatical
principles in Lockhart v. United States
(here).It
appears that all of the justices will continue in Scalia’s tradition of close
textual analysis, although in this case neither side did it very well.
Lockhart
was convicted of possession of child pornography.The statute carries a mandatory minimum
sentence for those who have already been convicted of certain federal statutes
involving sexual abuse, or have been convicted “under the laws of any State
relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward.”Lockhart had
earlier been convicted in New York for having sexually abused his then 53-year
old girlfriend.
The
case revolved around the words “involving a minor or ward.”If that phrase modifies only “abusive sexual
conduct,” then Lockhart’s conviction for abusing his adult girlfriend puts him
within the sentence enhancement.But if
“involving a minor or ward” modifies all three crimes, then Lockhart would not
be subject to the longer prison term since his crime did not involve a minor.
Sotomayor’s
majority opinion relied on the “rule of the last antecedent,” which says that
“a limiting clause or phrase … should ordinarily be read as modifying only the
noun or phrase that it immediately follows.”The rule is subject to exception when context demands it, and Kagan’s
dissent argued that this was such a case.Rather, the dissent argued, the final phrase modifies the entire list of
three crimes.
My
own analysis is that the rule itself applies ambiguously, and thus makes no
contribution to resolving the case.Consider the following sentence:
Bill saw a man and a woman with a
young child
There
are three readings:
1.The young child
was with the woman;
2.The young child
was with the man and the woman; 3.The young child
was with Bill.
The
last antecedent rule tells us to disregard interpretation 3.Bill is clearly not the last antecedent.But Lockhart
was, in essence, about choosing between 1 and 2.“A woman” is the last noun before “with a
young child,” and “a man and a woman” is the last phrase before “with a young
child.”Indeed, as linguists recognize,
we can understand “with a young child” either way.Both sides present examples from ordinary
speech to support their position:the
modifier refers to the last member of the adjacent phrase (Find "a defensive
catcher, a quick-footed shortstop, or a pitcher from last year’s World Champion
Kansas City Royals”); or the modifier refers to the entire adjacent phrase (I
hope to meet “an actor, director, or producer involved with the new Star Wars
movie.”). Why this disarray?A combination of context and the lengths of
the list and the modifier seem to contribute to our preferred understanding.
The
non-linguistic arguments on both sides, in contrast, were persuasive.The majority noted that the three types of
state crimes mimicked virtually verbatim the list of federal crimes that would
also result in an enhanced sentence, and that only the third of the federal
crimes involves minors.Why would
Congress create an asymmetry between state and federal triggers for sentence
enhancement when a perfectly natural reading of the law would increase the
penalty for prior convictions regardless of which court heard the case?The dissent, in contrast, cited legislative
history that strongly suggested congressional concern with individuals who have
repeatedly preyed on children.After
all, Lockhart was convicted of violating the child pornography statute, but had
never been convicted of a crime involving the abuse of children.
In
some ways, nothing much has changed since 1991.The substantive disagreement was over whether a general preference for
coherence should trump detailed inquiry into the history of the particular
statute in dispute.Once again, coherence
won – this time, by a vote of 6 – 2.How
would Scalia have voted?Perhaps he
would have sided with the dissenters, relying on the rule of lenity in cases of
linguistic ambiguity in criminal statutes.He frequently dissented on those grounds.Or perhaps he would have stuck with the
majority’s rather persuasive coherence argument, the same kind of argument he
had used a quarter century earlier in Casey.Only the remaining justices and their clerks know
the answer to that one.