Excelling at grammar has not seemed to be among the skills required of a Supreme Court justice. Law clerks and the reporter of decisions take care of that, right?
But this term, grammar knowledge is looming large. As we've reported here and here, the meaning of the commas in the Second Amendment could be a major factor in deciding D.C. V. Heller, the critical case testing D.C.'s strict handgun ordinance.
Today, in a much lower-profile decision Ali v. Federal Bureau of Prisons, grammar also plays a role in interpreting the statute at issue. And if you parse it closely, it may even offer some hints about how the justices will handle the Second Amendment case as well.
Invoking the Federal Tort Claims Act, inmate Abdus-Shahid Ali sued the bureau for losing some of his personal belongings during a prison transfer. The government, supported by all lower courts and now the Supreme Court, said Ali's claim should be dismissed, because of an exception in the law that gives immunity from liability for "any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise or other property by any officer of customs or excise or any other law enforcement officer."
For an amazing 14 pages in the majority by Justice Clarence Thomas and 21 pages of dissents by Justices Anthony Kennedy and Stephen Breyer, justices debated whether, grammatically or by other rules of statutory construction, the final phrase "or any other law enforcement officer" can include prison officers, or relates only to those involved in customs or excise disputes. Thomas rules that the phrase is "disjunctive, with one specific and one general category," and therefore can be read to refer to "any" law enforcement officer, not just customs officers. Thomas is joined by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Ruth Bader Ginsburg and Samuel Alito Jr.
Au contraire, say Kennedy and Breyer in dissent. Kennedy argues that the comma in the middle of the text at issue does not divorce the clause that follows from what went before (and therefore, the exemption only applies to customs officers.) That's an issue in the Second Amendment case as well, where the debate is whether the right to "keep and bear arms" is pertains only to a preceding phrase that refers to a "well-regulated militia."
So does that mean that based on his reasoning today, Kennedy (and Justices John Paul Stevens, David Souter and Breyer, who joined him) will support the view that the Second Amendment only protects a militia right rather than an individual right? Almost as if he anticipates that question, Kennedy cautions that the majority view is "not without grammatical support."
Footnote: Breyer's separate dissent focuses on the word "any" in the statute, and he offers an amusing illustration for his point that "any" is not a universal word, but has context. Breyer writes, "When I call out to my wife, 'There isn’t any butter,' I do not mean, 'There isn’t any butter in town.' The context makes clear to her that I am talking about the contents of our refrigerator." In the real world, of course, many spouses would give a third meaning to Breyer's proclamation: "The butter is staring me in the face, but because I am a man, I can't find it."