Scalia rips Oral Advocate, tells him choate is not opposite of inchoate

From the ABA Journal, Justice Scalia had choice words for an attorney who, apparently made up a word, during Oral Arguments.

The problems began for lawyer Randolph Barnhouse soon after he described an opportunity to collect tax money as an “inchoate” interest—an interest that is not yet fully formed, the Associated Press reports.

Barnhouse was arguing that a city government may not bring a RICO suit to recover uncollected taxes because a lost tax opportunity is not an injury to property covered by the statute. (SCOTUSblog has the argument preview.)

In response to a hypothetical, Barnhouse then spoke of a “choate” interest in property—to Scalia’s dismay. Page 5 of the transcript (PDF) has the exchange.

There is no such adjective,” Scalia said. “I know we have used it, but there is no such adjective as ‘choate.’ There is ‘inchoate,’ but the opposite of ‘inchoate’ is not ‘choate.’ “

As Barnhouse tried to move on, Scalia offered an example. “It’s like ‘gruntled,’ ” he said.

“But I think I am right on the law, Your Honor,” Barnhouse offered, but Scalia wasn’t done.

“Exactly. ‘Disgruntled,’ ” Scalia said. Some people mistakenly assume the opposite of “disgruntled” is “gruntled,” he explained.

I bet after arguments, this attorney was not gruntled.

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15 Responses to “Scalia rips Oral Advocate, tells him choate is not opposite of inchoate”

  1. Carl Edman Says:

    Scalia was nicer to our advocate’s closing statement yesterday:
    “Jeff Lamken: Mobile-Sierra can’t be the energy law equivalent of the Maginot Line, that protects against direct results from the parties themselves but provides no protection, not whatsoever, against complaints by noncontracting parties.”
    “JUSTICE SCALIA: I like that. That’s very imaginative.”
    [Case is submitted.}

    PS: Never, ever use the “de minimUs” in a Scotus brief.

  2. Joshua House Says:

    Interestingly enough, Scalia is wrong about “gruntled”. Oxford dictionary says it means “pleased, satisfied” – the word was derived from disgruntled in the 1930s.

    He’s still correct about choate though. Epic word-fail, advocate.

    • Josh Blackman Says:

      Good find Josh. Just hat-tipped you in the followup post. http://joshblogs.wordpress.com/2009/11/04/justice-scalia-is-wrong-gruntled-is-a-word/

    • Naumadd Says:

      The word “choate”, in fact, has been around and used for a long time. It’s listed in several general and legal dictionaries as having the meaning Scalia denies exists. http://bit.ly/3DydMi

  3. Justice Scalia is Wrong. Gruntled Is A Word! « Josh Blackman's Blog Says:

    [...] Gruntled Is A Word! November 4, 2009 — Josh Blackman This morning, I discussed an ABA Journal article, wherein Justice Scalia chastised an advocate for making up the word choate. To article reports As [...]

  4. Justice Scalia is Wrong. Gruntled Is A Word! « Josh Blackman's Blog Says:

    [...] it seems Scalia may be wrong. Josh House, a GW 1L, and an astute commenter, pointed out that gruntled is in fact a word: Interestingly enough, Scalia is wrong about [...]

  5. Naumadd Says:

    Scalia is wrong; “choate” is listed in several legal dictionaries as having the meaning of “completed or perfected in and of itself”. His main failure is in disagreeing, not knowing or simply forgetting that language is an ever-evolving tool belonging to none exclusively. One may wish that “choate” was not used as the antonym of “inchoate” and even refuse to use it in that manner, however, others are and must be free to define and use it how they choose. It’s quite likely “choate” is defined, used, and listed in these dictionaries because enough individuals choose it as the antonym to “inchoate” to warrant the listing. Words acquire meaning and usage, change meaning and usage and lose meaning and utility altogether depending on the contextual needs of those who use them. That’s the nature of language.

    Dictionaries are guides to language … not rulebooks and certainly not nooses around the necks of those who speak or write. Like so many others, Justice Scalia needs to loosen his linguistic sphincter.

  6. Carl Edman Says:

    Naumadd has a point. Us anglophones are blessedly free of an Academy Anglaise to tell us what is proper English and what is not. Ultimately we have nothing to fall back upon than common usage and history, as recorded rather than defined in dictionaries. And time and usage have blessed far too many words and phrases which once would have been regarded as malapropisms or plain error for us to condemn anything objectively.

    And, yet, much can be reasonably deduced about a speaker’s level of education, affinity for the English language, and even intelligence by what words he chooses and which he doesn’t. One may object to such a deduction to that wicked elitism and proof of class oppression, without detracting one iota from its statistical validity.

    Hence, if one aspires to practice English at the most elevated levels, such as in front of the Supreme Court, one would be well-advised to avoid words or phrases such as “choate,” “irregardless” or “de minimus.” If uou choose to deliberately violate these conventions, better make absolutely sure that your audience understands that you do so knowingly and for the sake of drollness.

    • Naumadd Says:

      At least one thing our culture would do better without are airs of pomposity in the chambers of the Supreme Court … or anywhere else. One is well-advised to have a more mature understanding of the nature of language and its history, of changing and ever-evolving contexts, of communication and of the unfortunate need to interact with the immature in “high” … and in “low” places.

      Scalia knew what the advocate meant. He simply chose to be an ass about it thus detracting from the important task at hand.

  7. Carl Edman Says:

    In your opinion, Naumadd, is there any non-standard usage (or error, for you prescriptivists out there) which one should avoid in front of SCOTUS, as long as the statement is at least comprehensible? Or which would make you think at least ever so slightly less of the speaker’s education, intelligence, or diligence?

    • Naumadd Says:

      If your intended meaning is genuinely conveyed to those listening or reading, no, there is no non-standard usage you should avoid, most especially in the highest court of a culture that allegedly reveres individual liberty and freedom of speech. Language is a tool used for the communication of meaning. If your intended meaning is, in fact, conveyed, you’ve succeeded in communication. You aren’t responsible for the preexisting or emergent assumptions residing in the heads of others – they are. Certainly, one ought to be as culturally aware as one can be regarding the attitudes of others toward one’s word choices, however, this awareness should be for the purposes of personal preparedness for their immaturities and NOT for the purposes of compliance with them.

      No doubt, Scalia thinks language is or ought to be as prescriptive as law. It is not and ought not be. Although law indeed has authorities, language does not. It has experts, but there are no linguistic authorities. That’s not the nature of language despite the many attempts of some to make it that way.

      What you think of the education, intelligence or diligence of another is your own incumbrance. Try not to make it theirs as well. They no doubt have incumbrances of their own to bear.

  8. troll_dc2 Says:

    Carl Edman, I can think of one word whose misuse ought to be fought to the death. That word is “disinterested.” It does not mean–and in fact can mean the opposite of–“uninterested.” It means that you are not taking sides; it does not mean that you don’t care.

  9. Carl Edman Says:

    Absolutely. A good judge must always be disinterested, but never be uninterested.

  10. Dan Gunter Says:

    My 1990 edition of Black’s lists “choate,” and Barnhouse used it in precisely the meaning set out in Black’s.

    Epic lexicographical fail.

  11. troll_dc2 Says:

    Scalia is like a god to some theorists, but he is as capable of making mistakes as any other justice.


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