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Bench Memos

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Sometimes Judges Need Editors



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James Taranto of OpinionJournal, in his Best of the Web column today (see the final item) comments on an amusing article that appeared in Legal Times regarding the silent feud that rages beneath the placid surface of the Supreme Court about when to add an “s” after the apostrophe when forming a possessive of a noun that ends in “s.”  I’m with the author, attorney Jonathan Starble: count me in the camp of Justice Souter on this one, not Justice Thomas.

I’ve been editing Supreme Court opinions for years, just for my students (because I can’t stand either the cost or the editing of commercial casebooks), and for most of that time I have been silently correcting the justices who get this wrong.  The late Chief Justice Rehnquist was one of the worst offenders, believing wrongly that the possessive of the proper noun “Congress” takes an apostrophe with no “s” added.

Taranto reports an incoherent Wall Street Journal stylebook rule about whether a syllable is accented or not.  Where that idea came from is anybody’s guess.  If you want an authority, try Strunk and White’s Elements of Style, where this is literally the first rule in the book: “Form the possessive singular of nouns by adding ’s.  Follow this rule whatever the final consonant.”  A very, very few exceptions are admitted.  And the sainted H.W. Fowler concurs, in his 1926 A Dictionary of Modern English Usage (avoid all subsequent editions and “American” usage guides), insisting on the “s” except “[i]n verse, & in poetic or reverential contexts.”

As a teacher, I take a somewhat softer but commonsensical line: if you would say it when speaking, spell it when writing.  Does anyone think that voicing the syllables “Congress” is capable of expressing a possessive sense?  Of course not.  What everyone says is “Congresses,” so we need to add the extra “s” that we utter when speaking.

As Starble’s article makes clear, the trouble on the Supreme Court is that every justice runs a self-governing editor’s shop, the result being nonstandardization.  No one is willing to tell any of the justices that they commit solecisms.  Now there’s a real job for the new chief justice!


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