GRAMMAR & SYNTAX ARGUMENTS ON THE ROBERTS COURT

In his excellent book, The Language of Judges, Professor Solan demonstrates how judges use grammatical or linguistic arguments to avoid acknowledging statutory ambiguity—and how they often get the grammar or linguistics wrong. Since his book was published, textualism has become the dominant interpretive approach on the U.S. Supreme Court—and we have seen increasingly prominent battles involving grammatical devices and rules. This comment takes Professor Solan’s analysis as a jumping off point to evaluate how grammar and linguistic arguments are employed on the modern Supreme Court, in the age of textualism. The comment offers a brief empirical and doctrinal assessment of the status of grammar-based arguments on the modern Court, based on a study of 668 statutory cases decided during the Roberts Court’s first sixteen-and-a-half terms. In addition to empirical data chronicling the Court’s increasing use of grammar-based arguments over time, the comment provides a brief taxonomy of the specific forms of grammar-based arguments the Roberts Court tends to employ. It also notes some problems with the Court’s use of grammar-based arguments, including that the Justices tend to rely on their own judicial intuitions—rather than grammar treatises or sources authored by linguistics experts—as authority for the grammar-based rules they invoke and that the Court is using grammar-based arguments as outcome-determinative in a surprising percentage of cases. In the end, the comment suggests greater caution in the Court’s use of grammar-based arguments. Specifically, it advocates that the Court (1) support any grammar-based arguments it employs with references to linguistic treatises or grammar books authored by experts in the fields of language or linguistics and (2) avoid basing its statutory interpretations exclusively or even primarily on any grammar-based rule—instead limiting the use of grammar-based arguments to situations in which they corroborate the meaning indicated by other interpretive canons and tools.