View Full Version : Commas, Clauses and Missing Butter at the Supreme Court

01-23-2008, 5:59 AM


January 22, 2008
Commas, Clauses and Missing Butter at the Supreme Court

Excelling at grammar has not seemed to be among the skills required of a Supreme Court justice. Law clerks and the reporter of decisions take care of that, right?

But this term, grammar knowledge is looming large. As we've reported here and here, the meaning of the commas in the Second Amendment could be a major factor in deciding D.C. V. Heller, the critical case testing D.C.'s strict handgun ordinance.

Today, in a much lower-profile decision Ali v. Federal Bureau of Prisons, grammar also plays a role in interpreting the statute at issue. And if you parse it closely, it may even offer some hints about how the justices will handle the Second Amendment case as well.

Invoking the Federal Tort Claims Act, inmate Abdus-Shahid Ali sued the bureau for losing some of his personal belongings during a prison transfer. The government, supported by all lower courts and now the Supreme Court, said Ali's claim should be dismissed, because of an exception in the law that gives immunity from liability for "any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise or other property by any officer of customs or excise or any other law enforcement officer."

For an amazing 14 pages in the majority by Justice Clarence Thomas and 21 pages of dissents by Justices Anthony Kennedy and Stephen Breyer, justices debated whether, grammatically or by other rules of statutory construction, the final phrase "or any other law enforcement officer" can include prison officers, or relates only to those involved in customs or excise disputes. Thomas rules that the phrase is "disjunctive, with one specific and one general category," and therefore can be read to refer to "any" law enforcement officer, not just customs officers. Thomas is joined by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Ruth Bader Ginsburg and Samuel Alito Jr.

Au contraire, say Kennedy and Breyer in dissent. Kennedy argues that the comma in the middle of the text at issue does not divorce the clause that follows from what went before (and therefore, the exemption only applies to customs officers.) That's an issue in the Second Amendment case as well, where the debate is whether the right to "keep and bear arms" is pertains only to a preceding phrase that refers to a "well-regulated militia."

So does that mean that based on his reasoning today, Kennedy (and Justices John Paul Stevens, David Souter and Breyer, who joined him) will support the view that the Second Amendment only protects a militia right rather than an individual right? Almost as if he anticipates that question, Kennedy cautions that the majority view is "not without grammatical support."

Footnote: Breyer's separate dissent focuses on the word "any" in the statute, and he offers an amusing illustration for his point that "any" is not a universal word, but has context. Breyer writes, "When I call out to my wife, 'There isnít any butter,' I do not mean, 'There isnít any butter in town.' The context makes clear to her that I am talking about the contents of our refrigerator." In the real world, of course, many spouses would give a third meaning to Breyer's proclamation: "The butter is staring me in the face, but because I am a man, I can't find it."

Posted by Tony Mauro on January 22, 2008 at 01:40 PM in Supreme Court

01-23-2008, 6:38 AM
It depends upon what the definition of "is" is.

01-23-2008, 8:42 AM
Grammar and spelling aren't important. Why does everyone have to be so meticulous about it? :rolleyes: ;)

01-23-2008, 2:08 PM
Grammar and spelling aren't important. Why does everyone have to be so meticulous about it? :rolleyes: ;)

Yeah ohsmily. Don't you just HATE those grammar and spelling natzees?

01-23-2008, 2:24 PM
It depends upon what the definition of "is" is.

But does it really matter if the definition of is is is, or if the definition of is is the third person singular present indicative of be.

"It depends on what the meaning of the word 'is' is. If the--if he--if 'is' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true."

So if Monica Lewinsky is not currently hanging from bobo's nose, then the meaning of is is the third person singular present indicative of be, in which she not be honking bobo's nose at this time, thus the answer is no.

01-24-2008, 12:41 PM
The more I think about the situation the more I realize the intent of the BOR and other Constitutional limits: they knew a government wants to disarm people so they purposefully nailed down that they CAN'T. I wonder what it would take to get the populous at large to say "Hey wait a minute, isn't this this the kind of gov't they warned us about?!"