United They Hold, Divided They Might Fail: A Corpus Linguistics Analysis of the U.S. Supreme Court's Recent Ordinary Meaning Cases

Abstract

The U.S. Supreme Court often decides a criminal defendant's fate by determining the "ordinary meaning" of a statute's phrase. The Court relies heavily on dictionaries in making this determination. However, dictionaries cannot reveal a word or phrase's ordinary meaning; it can only reveal a list of plausible meanings which are often ordered either by chronological use or by random assignment. Thus a criminal defendant's fate could be randomly decided.

This outcome can be avoided by using corpus linguistics. This tool allows the user to determine the most common meanings of a phrase by looking at hundreds of examples of its "ordinary use." This paper uses corpus linguistics to analyze four recent Supreme Court cases dealing with ordinary meaning in a criminal statute. First, it will examine the two definitions advocated for by each party to determine how often they were ordinarily used. Second, it will look at whether the Court’s ultimate holding chose the primary meaning (i.e. the most ordinary meaning), an ordinary meaning, or just a plausible meaning. Finally, this paper will consider whether the Court is more likely to pick the primary meaning when it is unanimous instead of split. Ultimately it concludes that the Supreme Court's chosen definition is more likely to be either the most ordinary meaning or an ordinary meaning when they are unanimous. But this study also reveals that the Supreme Court does not have a consistent definition for their "ordinary meaning" doctrine. This inconsistency will continue to produce unfair results for criminal defendants (and civil parties) and can be avoided through the use of corpus linguistics.