Grammar Teachers at the Supreme Court, by Jamie Durling

by Guest Blogger — Tuesday, Oct. 16, 2018

Many commentators, including a former law clerk, have described Justice Gorsuch as a devoted grammarian. In his first Supreme Court opinion, for instance, Justice Gorsuch dismissed one party’s argument by writing that its interpretation “doesn’t follow even as a matter of good grammar, let alone ordinary meaning.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1722 (2017).

As another example, I have previously written in the Yale Journal on Regulation about then-Judge Gorsuch’s use of a sentence diagram in United States v. Rentz, 777 F.3d 1105, 1109 (10th Cir. 2015) (en banc). In Rentz, Judge Gorsuch diagrammed an “enigmatic” provision of 18 U.S.C. § 924(c), which reads (in relevant part):

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—be sentenced to a term of imprisonment of not less than 5 years.

18 U.S.C. § 924(c)(1)(A). Judge Gorsuch described this passage as a “bramble of prepositions,” which “may excite a grammar teacher” but was certainly keeping “the federal courts busy.” Rentz, at 1106.

I concluded my essay by asking whether Justice Gorsuch might “become[] the first Justice to include a sentence diagram in a Supreme Court opinion.” But maybe I should have focused instead on the reference in Rentz to grammar teachers.

Earlier this month, during oral arguments in Nielsen v. Preap, Justice Gorsuch perhaps became the first Justice to reference his grammar teacher during a Supreme Court oral argument. (I say “perhaps” because I haven’t actually checked.) In Preap, the Justices will decide “[w]hether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.”

Justice Gorsuch asked a question about a particular provision in § 1226(c)(1), which reads (again in relevant part): “The Attorney General shall take into custody any alien who—[listing of various qualifying conditions], when the alien is released . . .” Here’s what Justice Gorsuch asked Preap’s counsel:

Okay. You’ve hinged a lot on the language, and you’ve told us to ignore what’s happened after 1996 and, in response to Justice Sotomayor, went back to that language, “when the alien is released.”

But, if we’re going to focus really carefully on the language, what do we do about the fact that that is an adverbial phrase? And you’re asking us to suggest that it modifies the noun “alien” and limits the class of aliens that are involved.

“Alien” is a noun. Adverbs don’t usually modify nouns. They usually modify verbs. And the verb here is “shall take into custody.”

So why isn’t it that the duty, “shall take into custody,” is modified by the adverb, “when the alien is released,” okay, and so the government’s obligation begins at that moment. We know that’s when the “shall take into custody” duty starts. But the class of aliens, the who, the noun, has nothing to do with the adverb.

Now that’s the question my fifth grade grammar teacher would have, all right? And so I pose it to you.

Later in the exchange, Justice Gorsuch again referenced his teacher, noting “I think my fifth grade grammar teacher would love this discussion . . . .” [Full Disclosure: This author’s mother is a former fifth-grade grammar teacher.]

It probably shouldn’t surprise us that Justice Gorsuch referenced his elementary-school grammar teacher, since English teachers appear as a common rhetorical device in his Tenth Circuit opinions. Besides Rentz, Judge Gorsuch referenced English teachers in at least three other opinions, often to lament the grammatical “sins” displayed in legal documents. In Payless Shoesource, Inc. v. Travelers Companies, Inc. 585 F.3d 1366, 1368 (10th Cir. 2009), for instance, Judge Gorsuch wrote that, “while misplaced modifiers are syntactical sins righteously condemned by English teachers everywhere, our job is not to critique the parties’ grammar, but only, if possible, to adduce and enforce their contract’s meaning.” In United States v. Rosales-Garcia, 667 F.3d 1348, 1356 (10th Cir. 2012) (Gorsuch, J., dissenting), he put the issue more plainly in describing a provision of the sentencing guidelines: “This has to be a sentence only a grammar teacher could love.” Other circuit judges have since echoed the sentiment. See United States v. Rivera-Constantino, 798 F.3d 900, 902 n.1 (9th Cir. 2015); United States v. Martinez-Ortega, 482 F. App’x 96, 98 n.1 (6th Cir. 2012).

But Justice Gorsuch’s most impassioned discussion of grammar teachers came in United States v. Krueger, 809 F.3d 1109, 1119 (10th Cir. 2015) (Gorsuch, J., concurring) in the course of analyzing a provision of the statute that defines the jurisdiction of magistrate judges:

Put in a way your high school English teacher might appreciate, the magistrate judge is the subject of the sentence in § 636(a), his powers and duties are the objects of that sentence, and the language beginning “within the district” is a prepositional phrase that modifies (and so limits the reach of) the verb “shall have.” . . . So malign your high school grammar class all you want and rejoice in the fact no one teaches it anymore: it holds the key to the statute before us and, really, there just isn’t any better preparation for the job of understanding and giving effect to so many of the complex (often run-on) sentences that (over?) populate today’s statute books.

His defense of grammar (and grammar teachers) notwithstanding, Justice Gorsuch will unfortunately not become the first Justice to include a reference to his grammar teacher in a Supreme Court opinion. His predecessor, Justice Scalia, beat him to the punch. See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 591 (1998) (Scalia, J., concurring) (“The phrase ‘taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public’ is what my grammar-school teacher would have condemned as a dangling modifier . . . .”).

Nevertheless, Justice Gorsuch’s line of questioning in Preap and his opinions on the Tenth Circuit further illustrate the role that grammar plays in his decision-making as a judge. Thus, advocates before the Supreme Court would do well to heed the advice of one commentator, who urged attorneys to write briefs with “complex grammatical analyses that scrutinize every subsection and comma”—or what he dubbed “the Gorsuch brief.”

Jamie Durling is a recent graduate of Yale Law School. His student comment, Diagramming Interpretation, appeared in Volume 35 of the Yale Journal on Regulation. The views expressed in this post are those of the author alone.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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