Justice Elena Kagan continues to proudly fly the geek flag in her recent dissent in Lockhart v. United States. It is a safe bet that the late Justice Scalia would have been proud of for Justice Kagan’s analysis of statutory sentence structure.
Justice Kagan stated in dissent:
Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.” Surely a person would have cause to protest if punished under that provision for violating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase—“involved with the new Star Wars movie,” “in New York,” “relating to insider trading”—applies to each term in the preceding list, not just the last.
Lockhart v. United States (2016) ___U.S.___ [136 S.Ct. 958, ___L.Ed.2d___].
Justice Kagan succinctly summed up the issue in one sentence: That ordinary understanding of how English works, in speech and writing alike, should decide this case. Id.
It is refreshing to see a Supreme Court Justice who can make a point on common sense sentence construction while invoking both Star Wars and Zoolander.
Justice Kagan is the current legal geek on the Supreme Court. Time will tell if Judge Merrick Garland will be asked in Senate hearings on Han Solo’s Legal Justification to Shoot First, how the needs of the many outweigh the needs of the few, or if worthiness creates a revocable ownership interest in Thor’s Hammer.