The Supreme Court is integrally tied to Congress with its common function of reviewing federal statutes. Sometimes the statutes are more straightforward in their drafting while other times they are more obscure and esoteric. In last week’s oral argument in Encino Motorcars v. Navarro the Court looked at the designation “service advisors” to examine if these individuals are exempt from overtime pay requirements under the Fair Labor Standards Act (FLSA). Several of the Justices quickly staked positions in what appeared at first blush to be an interpretation of common language. Justices Ginsburg, Breyer, Sotomayor, and Kagan for instance had questions and concerns to convey to Paul Clement representing the employer Encino Motorcars.

In Supreme Court statutory interpretation proceedings there are common canons of interpretation that are regularly used and are written about in great detail in legal scholarship. These canons range from following the plain meaning of the text of a statute to using legislative history or other information regarding Congress’ intent to impute a meaning to statutory text. More obscure canons are also raised from time to time. Paul Clement discussed the Reddendo canon in Encino Motorcars which hasn’t been used by the Court since 1918 (per Clement’s description).

There are occasionally more direct ways to gauge Congress’ intention or the goal behind an agency’s construction. In Encino Motorcars, this type of interrogation was facilitated through the interaction between Justice Kagan and Anthony Yang from the Solicitor General’s Office. The salient point of the interaction went:

JUSTICE KAGAN: Mr. Yang, why was it — I mean, for the most part this explanation seems like not the world’s best explanation to me but perfectly adequate. But Mr. Clement does have a point that somehow the agency took out this more specific explanation and I — I guess if I were just looking at the explanation itself I would say, you know, not an A-plus job, but fine. But it is a little bit perplexing as to why they took this out. Why was that?

YANG: Well, we don’t have this in the record, but I have been informed that there was an inadvertent mistake in drafting. All of these are in Subsection C of the statute.

JUSTICE KAGAN: Wow. I really did not expect expect you to say that.

Clearly such candor is not the norm, which may explain why the Justices must often resort to less direct approaches to identify the meaning of statutes and agency interpretations.

What is particularly interesting about the oral arguments in Encino Motorcars is that the Justices and attorneys engaged in a more general conversation about everyday grammatical rules that can aid in statutory construction. This descent into grammar began with Paul Clement’s opening statement and it continued with statements from the Justices including Justice Ginsburg’s, “If I may, given the grammar for a moment…”

The discussion went deeper than assessing punctuation or basic parts of speech. In two instances the discussion surrounded gerunds (nouns created from verbs by adding “ing”). Clement preliminarily discussed the application of the gerund “selling” to salesmen while later in the oral arguments, Anthony Yang discussed the application of gerunds under the Reddendo canon. One significant question at the center of this post is whether such grammatical discussions are unique?

While there is readily available information on the Supreme Court’s use of the common canons of statutory construction, there is less available information on the Court’s reliance on basic grammatical rules to derive statutory meaning.

Starting with “gerunds,” I was interested to see the frequency with which the Court delves into these grammatical features in oral arguments. As it turns out, Encino Motorcars is only the second oral argument since the 2010 Term to include a discussion of gerunds. The other case was Sandifer v. United States Steel. Interestingly enough, Anthony Yang also discussed gerunds in the statutory interpretation context in Sandifer and in that instance looked at the gerund “changing.”  Encino Motorcars was the only oral argument in this time period, however, to look at antecedent nouns and gerunds.

“Grammar” as a topic was raised in eleven oral arguments since 2010. Perhaps not surprisingly, more common grammatical features were discussed frequently. Since OT 2010, “words” were discussed in 422 oral arguments, “sentences” in 239, “clauses” in 206, and “phrases” in 193. “Tenses,” however, were only discussed in eight oral arguments.

Unsurprisingly, more complex permutations of these features, were examined in far fewer cases. “Subordinate clauses” for instance only came up in three oral arguments since the beginning of the 2010 Term (conditional, coordinate, relative and restrictive clauses did not appear in any oral arguments). “Main clauses” were raised in one oral argument – in Tapia v. United States – to distinguish the central clause in a statutory section from its subordinate counterparts. In another interesting similarity to Encino Motorcars the representative for the respondent in Encino Motorcars, Stephanos Bibas, engaged in the discussion of main versus subordinate clauses in Tapia.

Specific parts of speech each came up in several oral arguments but perhaps fewer than expected. Verbs came up most frequently, in 25 oral arguments, with adjectives next most in fifteen oral arguments. Following these nouns came up in nine oral arguments and adverbs in four. “Parts of speech” were only discussed directly  once in oral arguments during this period – in Friedrichs v. California Teachers Association – by California Solicitor General Edward Dumont.

Several aspects of grammar surprisingly did not arise in any oral arguments during this time period. These include: proper nouns, interjections, homonyms, syllables, prefixes, or suffixes. Another handful were only raised in one oral argument. “Syntax” was discussed in Lawson v. FMR. “Infinitives” were discussed in NLRB v. Canning. “Prepositions” were the source of discussion in arguments for Oxford Health v. Sutter. The Justices only looked at “pronouns” in oral arguments for Obergefell v. Hodges. Finally “modifiers” only came up in Lockhart v. United States,  which was argued this Term.

The Justices surely do not spend inordinate and unnecessary amounts of time breaking down statutes to look at their grammatical components, yet they do employ rules of grammar when these are helpful in statutory construction. Common features of grammar come up relatively frequently but the frequency falls precipitously when moving away from the most common grammatical characteristics such as words, sentences, and phrases.

As an understanding of grammatical rules can be essential to the construction of a statute, it is a necessary component of the modern Supreme Court attorney’s arsenal as is underscored by Paul Clement’s focus on the gerund “selling” in Encino Motorcars.

Conversely, while Justice Kagan did not find the government’s description of the agency’s interpretation of the statute an “A-plus explanation,” (in Justice Kagan’s own words) we will see later this Term whether Court agrees with the government’s (and the respondent’s) position in the case or that conveyed by Paul Clement, the attorney for the petitioner.