Obtain, dap, and sponge: when and how do judges use dictionaries?
Imagine you’re the latest appointee to the Supreme Court of the United States, and you’ve been called on to give your very first judgment. Part of the case rests on the meaning of an everyday word. With hundreds of dictionaries and thousands of definitions at your fingertips, how do you choose which book to pick up? On Monday last week, Justice Neil Gorsuch found himself wrestling with the meaning of obtain. In his quest for its ‘ordinary English’ meaning the Trump appointee sought the wisdom of the Oxford English Dictionary‘s definition: “to come into the possession or enjoyment of (something) by one’s own effort or by request”.
One small detail not mentioned in Gorsuch’s judgement is that the OED – the largest dictionary of the English language – has another 14 senses of obtain. The judge also could have found a more recently revised entry for obtain at OED Online, instead of using his older print edition. So why did he choose this edition of the OED over other dictionaries, and why just this one definition? Does Gorsuch consider the OED the ultimate authority on English language? Does he have a soft spot for the University of Oxford, where he earned his doctorate in 2004? Was the OED the starting point for his semantic inquiry, or did he already know the sense he was looking for before searching for it in a host of dictionaries, finding that one sense in the OED happened to fit the bill?
Judges’ relationship with dictionaries has a long, and not always auspicious, history. The earliest case to cite the OED may have been in 1891 on the far shores of Australia, where Chief Justice George Higinbotham claimed that the ordinary meaning of the word act corresponded to the dictionary’s sense of ‘a deed, a performance of an intelligent mind’. As Peter Gilliver’s recent history of the OED explains, this conclusion brushed over other senses in the OED which showed that ‘acts’ aren’t necessarily directed by the conscious will of a sane person (as in ‘the act of a madman’). It seems as though the court was relying on a particular sense of the OED in the same way a drunk leans on a lamp-post: for support but not for illumination.
Sometimes there are good reasons for a judge to be savvy with their dictionary choice. For instance, if a court needs to understand what a person who lived centuries ago meant when they drafted laws, the judges sometimes look to dictionaries from that period. In 1995, a US justice used dictionaries by Samuel Johnson (1773 edition), Nathan Bailey (1789 edition) and Thomas Sheridan (1796 edition) to understand what the architects of the US Constitution (written in 1787) intended to regulate when they referred to commerce. By contrast, judges have sometimes felt (rightly or wrongly) that traditional dictionaries aren’t keeping pace with contemporary slang, and instead have turned to Urban Dictionary to understand terms like iron (‘any kind of handgun’) and dap (‘the knocking of fists together as a greeting, or form of respect’). In fact, the OED contains both: we date the first use of dap back to 1971, and iron to an impressive 1828 (with the modified shooting iron even further to 1775).
The judicial world doesn’t just rely on dictionaries for help with niche or legal terminology. Take the High Court of Australia: since its inception in 1903 it has looked up plenty of legalese (including terms such as encumbrance, forfeiture, and liability). But it has also looked to lexicographers for their opinions on words that are semantically empty (in, there, not), words that are politically sensitive (Aboriginal, martyrdom, terrorist), words that are strikingly common (diaper, lottery, ship), and words that are downright inscrutable (ursprach, foundrous, tetany).
Not all judges think that consulting dictionaries is a necessary step in every question of meaning. Justice Evatt once acted on a surprisingly expensive dispute over whether a ‘sponge’ counted, for tax purposes, as a pastry or a cake. He declared:
According to the Oxford Dictionary a ‘sponge’ is ‘a very light sweet cake made with flour, milk, eggs, and sugar.’ A dictionary reference may not be necessary. Perhaps this is one of the few things that every schoolboy knows.
But for every judge who thinks that lexicography is a piece of cake, there are many who will continue to use dictionaries for all sorts of purposes: legal words, slang words, historical words, or brand words. Whether they are used for genuine semantic enquiry, or just for the impression of linguistic authority, the devotion of judges to their dictionaries is sure to continue for centuries to come.