• Home
  • News
  • Justice Scalia Delivers Lesson on Word Usage

U.S. Supreme Court

Justice Scalia Delivers Lesson on Word Usage

Posted Nov 4, 2009 8:09 AM CST
By Debra Cassens Weiss

A lawyer for a company that sells tax-free cigarettes over the Internet got a lesson on word usage from Justice Antonin Scalia on Tuesday.

The problems began for lawyer Randolph Barnhouse soon after he described an opportunity to collect tax money as an "inchoate" interest—an interest that is not yet fully formed, the Associated Press reports.

Barnhouse was arguing that a city government may not bring a RICO suit to recover uncollected taxes because a lost tax opportunity is not an injury to property covered by the statute. (SCOTUSblog has the argument preview.)

In response to a hypothetical, Barnhouse then spoke of a “choate” interest in property—to Scalia’s dismay. Page 5 of the transcript (PDF) has the exchange.

“There is no such adjective,” Scalia said. “I know we have used it, but there is no such adjective as ‘choate.’ There is ‘inchoate,’ but the opposite of ‘inchoate’ is not ‘choate.’ "

As Barnhouse tried to move on, Scalia offered an example. “It's like 'gruntled,' " he said.

“But I think I am right on the law, Your Honor,” Barnhouse offered, but Scalia wasn’t done.

"Exactly. 'Disgruntled,' " Scalia said. Some people mistakenly assume the opposite of “disgruntled" is “gruntled,” he explained.

Comments

1.

B. McLeod
Nov 4, 2009 8:18 AM CST

Sorry to His Most High Majesty of Other People’s Language, but it does exist, and is an adjective.  It is in Webster’s New World Law Dictionary, meaning, “completed or perfected in and of itself.”  Jerk.

Flag this comment

2.

Ian
Nov 4, 2009 9:29 AM CST

I bet you feel gruntled that you were able to find that don’t you Mcleod?

Flag this comment

3.

Time
Nov 4, 2009 10:40 AM CST

Not just a jerk, but a stupid jerk.

Flag this comment

4.

AndytheLawyer
Nov 4, 2009 10:47 AM CST

“Scalia” ishould be defined in the same dictionary as “Arrogant, pompous, pretentions, and as likely to be wrong as right about questions of English usage.”

Flag this comment

5.

Drew LoPucki
Nov 4, 2009 11:34 AM CST

From Merriam-Webster collegiate dictionary:

Gruntle:  To put in good humor.

Disgruntle:  To make ill-humored or discontented.
[it even says the etymology is dis+gruntle.]

It would be one thing for a Supreme to be attempting to be judge of the English language if he were right.  But doing it incorrectly ...

Flag this comment

6.

S. Loper
Nov 4, 2009 11:45 AM CST

For other nonexistent words, see: http://www.time.com/time/magazine/article/0,9171,890672,00.html

Flag this comment

7.

Been there
Nov 4, 2009 2:36 PM CST

Puttig aside questions of Scalia’s character flaws, the attorney before the bench should have used a more “standard” term to make his point. 

Unless the definition of “choate” was at issue - and apparently it was not - the attorney invited a deflection from the flow of his argument.

This is a lesson about the importance of using clear language.  Maybe the lawyer was “technically” right, but he still l lost time and momentum from his argument.  At oral argument, seconds count.

Flag this comment

8.

B. McLeod
Nov 4, 2009 3:10 PM CST

A more “standard” term?  Excuse me for saying it, but that is an incredibly lame comment.

How is any appellate counsel supposed to anticipate that a Justice of the Supreme Court will not know that any given word is a word?  I suppose we are all on notice now.  Indeed, this probably does mean, for the future, that there is a need to keep words used before the Court to simple, one-syllable ones, with easy spellings.  But who would have guessed that?  Until Scalia proved otherwise, the justices were widely supposed to be literate and educated jurists.

Flag this comment

9.

jbolaw
Nov 4, 2009 4:43 PM CST

This is nothing more than vintage Scalia, a role he seems to cherish.  In the Southwest it’s called “shooting from the hip” which means having only limited knowledge of the location of your target or what the target is.

Flag this comment

10.

B. McLeod
Nov 4, 2009 6:40 PM CST

Alternatively, since his book tour was less than a howling success, this could be a tawdry device to try to force the nation’s appellate lawyers to buy his stupid book, in order to figure out which words he actually knows.  I hope all our colleagues will resist this.  If we give into it, every other member of the Court will expect to do the same.  I think we pay enough taxes, dues and court registration fees already.  We shouldn’t have to buy all the books the Justices want to hawk.

Flag this comment

11.

Been There
Nov 5, 2009 11:44 AM CST

“A more “standard” term?  Excuse me for saying it, but that is an incredibly lame comment.”

My, my, my, 

The point I raised was that the duty of the attorney is to present his or her argument effectvely.  Do you disagree?  If so, then it seems you and I come from starting points that are too distant from each other for constructive discourse.  Perhaps it is best if you just ignore my comments in the future to avoid having your credulousness strained so uncomfortably.

Good day, sir.

Flag this comment

12.

B. McLeod
Nov 5, 2009 12:13 PM CST

Yes, I got that.  But, I noted that your point did not identify a particular term as “more standard.”  What makes one term for a concept “more standard” than another?  What is the word you contend counsel should have used, and better yet, how was he supposed to know Scalia would not recognize “choate” (which is very frequently used in discussions of tax and lien issues)?  “The duty of the attorney” does not extend to reading tea leaves, and if you are suggesting that the attorney was duty bound to buy Scalia’s book in order to identify the bounds of safe vocabulary, I disagree for the reasons noted above.  Further, if counsel’s duty extends to such an extent, it would follow that it would apply equally to isolating the known vocabulary of all the justices, so that counsel could be certain of using only that subset of words they all know.  For all the elaborate preparation lawyers go through with their cases before the Court, I don’t believe any have ever felt that this step was or should be required.  Indeed, until this very incident, I do not believe counsel would or should have foreseen that any justice might be such a complete ignoramus that one might have to research the words they know in order to have an argument in English understood by the bench.

Flag this comment

13.

B. McLeod
Nov 5, 2009 12:42 PM CST

I should (and will) add that if appellate counsel thoroughly researched the vocabularies of the justices (as some apparently suggest to be a matter of duty), counsel would have concluded that Scalia understood the word “choate.”  See, U.S. By and Through I.R.S. v. McDermott, 507 U.S. 447, 452 (FN 3), 453, (FN 4)(1993)(Scalia, writing for the Court).

And yes, I’m have a very good day, thank you.

Flag this comment

14.

COURT WATCHER
Nov 6, 2009 6:16 AM CST

Happy to see Scalia is now actually losing it in front of people.
Counting the days til they carry him off to the home.

Flag this comment

15.

Carla
Nov 6, 2009 6:36 AM CST

This article should be titled: “Scalia Goes Down In Flames Attempting To Give Lesson On Word Usage: Lawyer and Gallery Gruntled By Embarrassing Exchange.”

What an ass.

Flag this comment

16.

Patrick
Nov 6, 2009 6:50 AM CST

B. McLeod, I don’t know how or why you and Been There got at such cross ways, because BT seems like a kind heart and thoutful attorney, but I’m still madly in love with you.

Flag this comment

17.

Samantha
Nov 6, 2009 7:05 AM CST

Ah, but wait…would Merriam Webster or Webster’s be definitive to a word snob?  No.  The definitive dictionary is the Oxford English Dictionary, which (ahem) I just happen to have, albeit the compact version. 

**There is NO entry for “choate”
**There are entries for “gruntle” but they are not the opposite of disgruntled.  They are 1. the snout of a pig 2. the face of a man, 3. a little, subdued grunt, 4. to utter a little or low grunt or 5. to grumble, murmur or complain.

I would expect that Scalia would, if pressed, recognize these usages as acceptable….though perhaps not “standard.”

Flag this comment

18.

nybellhead
Nov 6, 2009 7:15 AM CST

Nino is my idol.  I love that guy.  If you’re going to practice before the Supreme Court you better have all you ducks in a row or else experience the wrath of the greatest Supreme Court justice this country has ever seen!

Forza Nino Scalia!

Flag this comment

19.

Lex
Nov 6, 2009 7:16 AM CST

If the Oxford doesn’t have it, it isn’t English.  You can keep your lowbrow language—Scalia and I do just fine speaking a less common tongue.

Flag this comment

20.

Bill
Nov 6, 2009 7:17 AM CST

Such hatred and animosity. 

I am plused.

Flag this comment

21.

Stephen Cypen
Nov 6, 2009 7:21 AM CST

Not very couth.

Flag this comment

22.

E. Johnson
Nov 6, 2009 7:28 AM CST

Webster is a horrible place to go to determine what is and is not a word in the English language.  Webster tends to incorporate slang, as apparently this lawyer does, and as B. McLeod does too.

Flag this comment

23.

B. McLeod
Nov 6, 2009 7:32 AM CST

And (if it is “slang”) as Scalia apparently does too, when writing for the Court (see above citation).  What?  Was he “born again?”  A “born again” word snob?

Flag this comment

24.

CAW
Nov 6, 2009 7:50 AM CST

FYI - Choate is in Black’s Law Dictionary.

Flag this comment

25.

Brian
Nov 6, 2009 8:25 AM CST

“Webster is a horrible place to go to determine what is and is not a word in the English language.  Webster tends to incorporate slang, as apparently this lawyer does, and as B. McLeod does too.”

Which Webster?  “Webster” is a freely-available term (a genericized trademark) that anyone can append to their own version of a dictionary.  That’s why Merriam-Webster makes sure to include the “Merriam” in everything Webster-oriented.

In any case, Scalia should really sit in on a linguistics course someday.  A course in semantics taught by a linguistics professor would really do him some good.

Flag this comment

26.

David Fishman
Nov 6, 2009 8:26 AM CST

Remember the grenade training scene in “Private Benjamin” where the Sergeant says of the grenades, “Some are inert, others are ert”.

Flag this comment

27.

DH
Nov 6, 2009 8:26 AM CST

Reminds me of when VP Dan Quayle “corrected” a grade schooler’s correct spelling of “potato” in front of journalists and cameras.  What a buffoon.

Flag this comment

28.

Trotter
Nov 6, 2009 8:27 AM CST

There’s a nice little essay in a Dictionary of Modern Legal Usage on the word “choate.”  Bryan Garner concludes that, while choate may be “etymologically misbegotten,” it’s definitely a word, and used “even by those who deprecate its origins.”  Aren’t we at the point in the descriptive-prescriptive debate on this word where the descriptivists have the better part of the argument.  It’s a word regularly used to describe an agreed concept.  So it’s a word.

Flag this comment

29.

B. McLeod
Nov 6, 2009 8:35 AM CST

Patrick (#16), that is actually my fault there, as I unnecessarily called Been There’s comment “incredibly lame,” when that really did not contribute to the substance of expressing why I disagreed with the comment.  It was less than civil, and I should not have done it.  (I am still working on my social skills).

Flag this comment

30.

SKR
Nov 6, 2009 8:39 AM CST

Scalia was etymologically correct in that the word “choate” was incorrectly derived from “inchoate.” The latin orgin of the word “inchoate” is “inchoare” which meant “to begin” and originally “to strap up.” The component “in” meant “on” not “not.” And the component “cohum” referred to the strap attached to an oxen’s yoke. But the opposing position can be argued with confidence to the effect that “choate” has become correct, or at least standard English, by common usage.

Flag this comment

31.

Gene
Nov 6, 2009 8:41 AM CST

I think you’ve all missed the point.  Scalia is tiring of the routine at the SC and is auditioning to take over for Andy Rooney on 60 Minutes.

Flag this comment

32.

Warner
Nov 6, 2009 8:48 AM CST

Scalia is to the Judicial what Bush was to the Executive: an embarrassment.

Flag this comment

33.

John Vail
Nov 6, 2009 8:50 AM CST

So whihc one becomes famous, and which one becomes infamous?

Flag this comment

34.

idk
Nov 6, 2009 9:02 AM CST

Scalia’s clerks (apparently) have drafted opinions he has signed “mis” using the term too.  507 U.S. 447 (thanks McLeod@13) Gene @ 31 has it right.  If you’re tired of hearing legal arguments and would rather debate linguistic semantics, retire and get a talk show. Maybe ACLU will co-sponsor your new endeavor. :)

Flag this comment

35.

idk
Nov 6, 2009 9:04 AM CST

First episode: Penumbra as used by non-legal-scholars

Flag this comment

36.

Admin Extraordinaire
Nov 6, 2009 9:09 AM CST

The new rule is this…once you can command the simple task of SPELLING correctly, and manage to compose a sentence with proper punctuation, then you can have the right to comment.  Is this the best of the legal field?

Flag this comment

37.

andres loepz
Nov 6, 2009 9:11 AM CST

Does Justice Scalia mean disgruntled, like he is?

Flag this comment

38.

MSMDC
Nov 6, 2009 9:32 AM CST

#37, Don’t you mean “as he is?”

Flag this comment

39.

PG
Nov 6, 2009 9:40 AM CST

Just a bully.

The digs are better at my college football blog.  Y’all are amateurs.

Flag this comment

40.

Tom
Nov 6, 2009 9:41 AM CST

As an Ivy Leaguer, the Justice was probably concerned that people might start mispronouncing Inchoate Rosemary Hall.

Flag this comment

41.

m913
Nov 6, 2009 9:56 AM CST

I am reminded of that great social commeter, The Simpsons: “Flammable and inflammable mean the same thing? What a country!”

Flag this comment

42.

cp
Nov 6, 2009 9:59 AM CST

I am whelmed by this discourse.

Flag this comment

43.

Cthulhu
Nov 6, 2009 10:28 AM CST

“Choate” appears on p. 234 of the 7th edition of Black’s Law Dictionary, edited by Justice Scalia’s sometimes co-author Bryan A. Garner. 

To lay claim to the honorific ‘curmudgeon’, you have to be correct.  If you’re curmudgeonly and wrong, then you’re just wrong.

Flag this comment

44.

Jeffrey A. Schwartz
Nov 6, 2009 10:30 AM CST

<<<Until Scalia proved otherwise, the justices were widely supposed to be literate and educated jurists.>>>

If you’ve been to law school (and so all of you), you know this is wildly untrue. Examples: Rehnquist, Ginsburg, O’Connor, Ginsburg, Kennedy, Ginsburg, Stevens, and Ginsburg in the modern era; Blackmun in the recent past, and vintage Holmes; all babbling, incoherent morons. As far as I can tell, Roberts, Alito, and Thomas are all relatively intelligent (even if wrong 50% of the time), and Hugo Black is the only one that ever consistently got free speech right, whatever you think of his background.

Flag this comment

45.

Bakes, Esq.
Nov 6, 2009 10:41 AM CST

Been There #11 said “Perhaps it is best if you just ignore my comments in the future to avoid having your credulousness strained so uncomfortably.”

“credulousness”? Shouldn’t you be using ‘more standard’ terms like “credulity”?

Flag this comment

46.

REbel Ruby
Nov 6, 2009 10:46 AM CST

m913(#41) and D. Fishman (#26):  Those by far are the best comments EVER.

Flag this comment

47.

John Anthony La Pietra
Nov 6, 2009 10:52 AM CST

@#26:  And let us not forget James Thurber’s _The Thirteen Clocks_, where Good King Gwain of Yarrow says sadly, “I am no longer ert, for I have lost my ertia.”

Flag this comment

48.

solusipse
Nov 6, 2009 11:22 AM CST

Proving Been There’s point, and eschewing the indisputable fact that Scalia is an intellectually dishonest, as well as pompous dolt, which seems to have engaged all of your attention,  can a city bring a RICO suit to recover.  uncollected taxes?  Continue to fiddle while western civ burns!

Flag this comment

49.

pretty boy
Nov 6, 2009 11:37 AM CST

Bryan Garner, one of the most authorities in legal writing, says this: The prefix “in” in inchoate is an intensive, not a negative or privative. Thus the BACK-FORMATION choate (=complete)—premised, as it is, on the notion that inchoate is a negative—makes little sense. But its now established in law <choate lien>.

If Garner says it, then I believe it.

Flag this comment

50.

Mark G. Murov
Nov 6, 2009 11:41 AM CST

What is there to debate about here?  Justice Scalia’s behavior is boorish and the fact that he sits on the Supreme Court and that some people think that good lawyering requires tolerating and navigating around it is a choice they can make if it suits them. But his behavior speaks for itself.  Not everyone has the ability to set boundaries with a bully, in real time, in a crucial and unforgiving environment, so Nino can go to lunch feeling smug and important.  Big Deal. This is why I give President Obama a pass on lots of things he could be doing better—at least we won’t get another Scalia under the present executive branch. And Thank God.

Flag this comment

Add a Comment

We welcome your comments, but please adhere to our comment policy.

Commenting has expired on this post.