The Supreme Court regularly references grammar rules when interpreting statutory language. And yet grammar references play a peculiar role in the Court's statutory cases—often lurking in the background and performing corroborative work to support a construction arrived at primarily through other interpretive tools. The inevitable legisprudential question triggered by such references is, why does the Court bother? If grammar rules provide merely a second, third, or fourth justification for an interpretation reached through other interpretive canons, then what does the Court gain—or think it gains—by including such rules in its statutory analysis?
This essay examines these questions through the lens of a little-noticed grammar reference that has reared its head in a handful of Supreme Court cases: inferences based on a
statute's use of the passive voice. The essay argues that the Supreme Court's framing of passive-voice arguments suggests both legitimating and harmonizing roles for grammar references in statutory interpretation. Larry Solan has argued that judges employ linguistic analysis in statutory interpretation because they are under pressure to write decisively and to limit what they say to certain acceptable argument forms. Linguistic arguments, Solan theorizes, lend a (false) sense of neutrality and inevitability to a court's statutory reading-making it seem as if the court had no choice but to construe the statute in the selected manner. The Court's passive-voice-based linguistic arguments provide some support for Solan's theory. But I submit that there is more to the Court's articulation of passive-voice-based interpretive inferences than the legitimation of its statutory constructions. This essay argues that the Court also uses passive-voice references to promote horizontal coherence across the United States Code. That is, when the Court announces particular interpretive inferences that flow from a statute's use of the passive voice and other grammar devices, it not only justifies its interpretation of the statute at issue but also constructs consistency of meaning across federal statutes.
Elsewhere, I have posited that several members of the Court are motivated by a methodological preference for ensuring coherence across the legal landscape when construing statutes. In line with this preference, when the Court derives specific consequences from a statute's grammatical choices, it does not merely apply well-worn rules to the statute at hand; it also engages in a subtle project of constructing coherence across the legal landscape-creating, in effect, a judicially prescribed federal code of grammatical meaning.
Krishnakumar, Anita S., "Passive-Voice References in Statutory Interpretation" (2011). Faculty Publications. 67.