Anoted linguist wrote to me not long ago hoping that I’d agree with him that judges shouldn’t resort to dictionaries and grammars. “They’re not designed for that,” my learned correspondent said. “Lexicographers aren’t primarily thinking about how their words would be used by a judge or a legislator, and they’d probably do their work very differently if they did.”

Doubting the accuracy of this statement, I asked how they’d do their work differently. The answer came in four parts. First, “they would freak out from the responsibility.” True, perhaps, but an emotional reaction to the idea that courts might rely on their work isn’t much of an answer. Second, I was told that the lexicographers would insist on far longer and more-detailed entries. I doubt that their employers, the dictionary publishers, would allow that — and in any event longer entries surely wouldn’t be more helpful. Third, the lexicographers would worry about whether they knew enough about the law to approach their task correctly. And fourth, they’d probably start inserting their own politics into definitions.

These points remind me of another friend, a lexicographer, who has been quoted as saying that he can’t imagine why a court would ever cite a dictionary.

It’s a curious position. It sounds as if some lexicographers would decry the best and highest real-world use of their work. Perhaps they think their work should never affect crucial decisions, but only trivial ones. They might even be destroying their own jobs.

To understand the issue of dictionaries in legal decisions, we must understand the three prevailing philosophies of judicial decision-making. First is textualism, which asks what the words of a statute fairly meant to a competent user of the language at the time of enactment. One of textualism’s principal tenets is the ordinary-meaning canon, which posits that words in a statute are presumed to have their everyday meanings unless something about them suggests a technical sense. You see, nonspecialist lexicographers needn’t know law.

The second philosophy is the badly named purposivism, which asks about the legislature’s broad purpose in enacting the statute — elevating that over the particulars of phrasing. Why badly named? The answer is that textualists also care about purpose if it can be gleaned from the language of the statute. But unlike textualists, purposivists will search out purpose by going well beyond the statutory words (as by resorting to the unenacted words of legislative history).

The third philosophy is consequentialism, which asks what might be the best result for society and for the particular litigants before the court. “Don’t tell me about the language of the statute,” a consequentialist will say: “Tell me how I can achieve the most just result that accords with my own conscience.” Consequentialists are freewheeling judges-turned-legislators. Their self-image is that of do-gooders, and they never reach a result contrary to their own political inclinations.

Most judges today adhere to textualism. “We’re all textualists now,” Justice Elena Kagan famously said a few years ago. And she was right. The controlling language of a constitution, statute, regulation, or contract is more important today than ever. Most scholars attribute this fact to the tenacity with which Justice Antonin Scalia insisted on taking legal texts seriously.

To the extent that judges are purposivists or consequentialists, they usually try to sneak in those philosophies under cover of darkness. They’ll operate under the guise of heeding the language while smuggling in their own views about the best outcome.

Which brings us back to why judges cite dictionaries and grammars so much: It’s because they’re textualists, for whom wordings matter. They don’t want to rely on their own understanding of words, as opposed to something more objective. Justice Oliver Wendell Holmes said it well: “We do not inquire what the legislature meant; we ask only what the statute means.”

The fact is that judges typically use dictionaries to ascertain the precise meanings of words that, in themselves, have no political content. In the last week of March 2023, American courts quoted the 11th edition of Black’s Law Dictionary (I’ve been chief editor over the past five editions) for these terms: action, ad valorem tax, association, bill of exchange, bona fide, capital gain, capital-gains tax, charge off, chattel, circumstance, claim, disease, emergency, excise tax, impracticability, income, indemnify, interpretation, mill rate, mortgagee, promissory note, property, provision, report, residence, standard mortgage clause, suffer, sum certain, and undersigned. Only about half those terms are peculiarly legal. For most, my definitions simply reflect ordinary usage.

As for grammar and usage, in the same month courts cited my grammatical writings on whether data can be singular as well as plural, how to spell employee/employe (a legislature had used the latter), the likely sense of shall in a given context, the meaning of a restrictive clause not set off by commas, the sense of coordinate adjectives before a noun, and the use of the present-perfect tense.

How any respectable lexicographer or grammarian could imbue these issues with personal politics is hard to see. Nobody can predict what specific questions will arise. In the eyes of textualists, though, linguistic issues come up every time you read a statute. And so it’s natural to seek linguistic expertise.

In fairness to my correspondent, though, I confess that the first time I saw a court quoting my work to affirm a death sentence, it bothered me.