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Stand back for an extremely minor observation about Bostock. Like super small potatoes. 1/x
J. Gorsuch says: "What did 'discriminate' mean in 1964? As it turns out, it meant then roughly what it means today: ‘To make a difference in treatment or favor (of one as compared with others).' Webster’s New International Dictionary 745 (2d ed. 1954)." 2/x
(Set aside for the moment the question of whether you can make a sweeping statement about what a word meant in a given year because one dictionary definition records that meaning.) 3/x
This move should be very familiar to anyone in the statutory interpretation game. Want to know meaning of a statutory term? Look it up in a dictionary. What dictionary? Well, the three most commonly cited by SCOTUS are Webster’s New Int’l, Amer. Heritage, and the OED. 4/x
So far so good. But wait. What if the statute was passed a long time ago? Then, conventional textualist wisdom says you look for a dictionary that was published around the time the statute was enacted. 5/x
So, if I want to know what discriminate meant in 1964, I should look it up in the 1954 printing of a dictionary that was published in 1934, i.e., Webster’s Second, right? 6/x
Um, no. I should look it up in Webster’s Third New Int’l Dictionary, which was published in 1961, three years before the Civil Rights Act. 7/x
Except that, for a certain type of textualist (rhymes with Schmalia), W3 is a highly suspect source of information about proper English. 8/x
In his opinion in MCI, 512 US 218, J. Scalia claimed that “intentional distortions, or simply careless or ignorant misuse, must have formed the basis for the usage that Webster's Third, and Webster's Third … reported.” 9/x
He further claimed that “[u]pon its long-awaited appearance in 1961, Webster's Third was widely criticized for its portrayal of common error as proper usage.” 10/x
There was a popular perception when W3 was published that W2 was a prescriptivist dictionary and that W3 was descriptivist and, well, standardless. J. Scalia was skeptical of W3 for this reason. 11/x
This always struck me as extremely anti-textualist. Wasn’t the idea to look to the ling. conventions of the community when addressing difficult interpretive questions? If those are reflected in a dictionary (questionable) wouldn’t it have to be a descriptivist dictionary? 12/x
But anyway, Scalia was skeptical of W3 and some textualists seem to have retained that skepticism. Maybe J. Gorsuch is one of those. 13/x
Post Script 1: J. Gorsuch references the 1954 printing of W2. J. Alito references the 1953 printing. I wonder if they have their own copies. 14/x
Post Script 2: This business of matching printing year to the date of enactment is always fraught. Dictionaries may carry forward old definitions without checking them against contemporary usage. The usage may come from an antiquated source and never been updated, etc. 15/x
Post Script 3: This business of using dictionaries to interpret legal texts is just generally fraught. I wrote about it here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1753333
And here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3065239
And here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3065239
Also, don't mean to pick on J. Gorsuch. J. Alito says: "In all those dictionaries, the primary definition of 'sex' was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 2296 (def. 1) (2d ed. 1953)."
He is also citing W2, which is most assuredly not the most recent Webster's New Int'l Dictionary. He is also highlighting the "primary definition." This is a common fallacy of judges and lawyers--the belief that the first definition is somehow the most correct or important.
In fact, W2 and W3 rank their senses historically--oldest sense goes first.
