Bench Memos

Law & the Courts

‘Quotation Modified’?!?

As someone who admires Justice Kagan’s craftsmanship, I’m surprised to learn from this tweet thread of the strange use that she made in an opinion last year of the citation appendage “(quotation modified).”

It’s conventional to modify quotations—without, of course, altering the meaning—by using bracketed material and ellipses to signal the modifications you’re making. I’m also fine on cleaning up quotations to eliminate clutter, such as brackets or ellipses, or to change confusing punctuation or capitalization, and a notation that says “cleaned up” strikes me as unobjectionable. But what Kagan did in two instances in her unanimous opinion in Thacker v. Tennessee Valley Authority was something very different.

Here is her first instance:

And Congress generally “intend[s] the full consequences of what it sa[ys]”—even if “inconvenient, costly, and inefficient.” Id., at 249 (quotation modified).

Here is what the cited source, Federal Housing Administration v. Burr (1940), actually says (emphasis added):

In our view, however, the bridge was crossed when Congress abrogated the immunity by this “sue and be sued” clause. And no such grave interference with the federal function has been shown to lead us to imply that Congress did not intend the full consequences of what it said. Hence, considerations of convenience, cost and efficiency which have been urged here are for Congress which, as we have said, has full authority to make such restrictions on the “sue and be sued” clause as seem to it appropriate or necessary.

The phrase “inconvenient, costly, and inefficient” simply doesn’t appear in Burr. What’s the point of concocting the quote? Why not simply cite Burr for the proposition? Similarly on the other change: The statement in Burr that “Congress did not intend the full consequences of what it said” might well imply that “Congress generally intends the full consequences of what it says” (my cleaned-up version of Kagan’s statement), but it doesn’t in fact say that, so why quote it as though it does?

Here is Kagan’s second instance in Thacker:

But it is no higher than appropriate given Congress’s enactment of so broad an immunity waiver—which demands, as we have held, a “liberal construction.” Ibid. (quotation modified).

Here, again, she is citing and quoting Burr. But here is what Burr says (emphasis added):

[W]e start from the premise that such waivers by Congress of governmental immunity in case of such federal instrumentalities should be liberally construed.

Citing Burr seems entirely proper. But what’s the point of putting “liberal construction” in quotes when the phrase from Burr is “liberally construed”? Why not just let the citation do its proper work? Or, if Kagan wanted to quote Burr and avoid the ugly “liberal[] constru[ction],” she could easily have used the actual quote: “which demands, as we have held, to be ‘liberally construed.’”

Yesterday’s opinion by Justice Sotomayor in Liu v. SEC marked the second time that “(quotation modified)” has been used in a Supreme Court opinion:

In civil actions, the SEC can seek civil penalties and “equitable relief.” See, e.g., §78u(d)(5) (“In any action or proceeding brought or instituted by the Commission under any provision of the securities laws, . . . any Federal court may grant . . . any equitable relief that may be appropriate or necessary for the benefit of investors”); see also §78u(d)(3) (“Money penalties in civil actions” (quotation modified)).

Unlike Kagan’s, Sotomayor’s use of “(quotation modified)” is trivial and probably gratuitous. Specifically, all that she did was eliminate a comma where she added the second ellipsis. But what’s strange about her quote is that she should have retained the words that she eliminated because they are what directly establish her proposition that “the SEC can seek … ‘equitable relief.’” Here’s the full 15 U.S.C. § 78u(d)(3), with the restored words italicized:

In any action or proceeding brought or instituted by the Commission under any provision of the securities laws, the Commission may seek, and any Federal court may grant, any equitable relief that may be appropriate or necessary for the benefit of investors.

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