#the supremes|

[practicalobscurity]

More on 'Crabbed'

According to LexisNexis, "crabbed" appears in 47 U.S. Supreme Court opinions. It is rarely used to describe handwriting, more often to describe an overly narrow or restrictive approach to interpreting a law or legal precedent.   

E.g., "The Court's approach in this case strikes me as somewhat  crabbed."

- Bloomer v. Liberty Mut. Ins. Co., 445 U.S. 74 (1980) (Blackmun, J., dissenting)

Perhaps unsurprisingly, it mostly appears in dissents. Justices Stevens, Brennan, and Blackmun were by far the word's most frequent users.

Here are some of my favorites:

"Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun "crab" refers variously to a crustacean and a type of apple, while the related adjective "crabbed" can refer to handwriting that is "difficult to read," Webster's Third New International Dictionary 527 (2002) ..."

 - FCC v. AT&T Inc., 131 S. Ct. 1177 (2011)

"Undergirding the majority's approach to the merits is the claim that the only 'sufficiently important governmental interest in preventing corruption or the appearance of corruption' is one that is 'limited to quid pro quo corruption.'  This is the same 'crabbed view of corruption' that was espoused by Justice Kennedy in McConnell and squarely rejected by the Court in that case."

- Citizens United v. FEC, 130 S. Ct. 876 (2010) (Stevens, J., dissenting)

"The Court's resurrection of the but-for causation standard is unwarranted.  Price Waterhouse repudiated that standard 20 years ago, and Congress' response to our decision further militates against the crabbed interpretation the Court adopts today"

- Gross v. FBL Fin. Servs., 129 S. Ct. 2343 (20090 (Stevens, J., dissenting)

"Surely $ 0.14 per week falls within even the most crabbed definition of 'affect' or 'regulate.' Today the majority has rendered this 'residuum of power' a nullity."

- Or. Waste Sys. v. Dep't of Envtl. Quality, 511 U.S. 93 (1994) (Rehnquist, C.J., dissenting)

"The Court's most cavalier application today of longstanding Eighth Amendment doctrines developed over the course of two decades of careful and sustained inquiry, when added to the host of other recent examples of crabbed application of doctrine in the death penalty context, ... suggests that this Court is losing sight of its responsibility to ensure that   the ultimate criminal sanction is meted out only in accordance with constitutional principle."

- Walton v. Arizona, 497 U.S. 639 (1990) (Brennan, J., dissenting)

"Today the Court holds that the plain language of a statute applicable by its terms   to 'any child support payments' compels  the conclusion that the statute does not apply to benefits paid to the defendant child of a disabled, retired, or deceased parent for the express purpose of supporting that child. Because I am persuaded that this crabbed interpretation of the statute is neither compelled by its language nor consistent with its purpose, and arbitrarily deprives certain families of a modest but urgently needed welfare benefit, I dissent."

- Sullivan v. Stroop, 496 U.S. 478 (1990) (Blackmun, J., dissenting)

"To support its crabbed construction of the Act, the Court makes a straightforward but unpersuasive argument."

- McNally v. United States, 483 U.S. 350 (1987) (Stevens, J., dissenting)

"The error in Butler was not the   Court's conclusion that the Act was essentially regulatory, but rather its crabbed view of the extent of Congress' regulatory power under the Commerce Clause."

- South Dakota v. Dole, 483 U.S. 203 (1987) (O'Connor, J., dissenting)

"The Court has adopted a restrictive reading of Stanley, opining that it has no implications to the criminalization of the sale or distribution of obscenity. But such a crabbed approach offends the overarching First Amendment principles discussed in Stanley, almost as much as it insults the citizenry by declaring its right to read and possess material which it may not legally obtain."

- Pope v. Illinois, 481 U.S. 497 (1987) (Stevens, J., dissenting)

"Just as I disagree with the present Court's crabbed view of the concept of 'liberty,' so do I reject its apparent unawareness of the function of the independent lawyer as a guardian of our freedom."

- Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305 (1985) (Stevens, J., dissenting)

"Yet after a jury and the trial court who heard and evaluated the evidence rendered verdicts for petitioner, the court below reversed based on a crabbed reading of our precedents and unexplained disregard of the jury and judge's factual findings. Because they are so patently erroneous, these maneuvers suggest only a desire to evade the central question: may a State dismiss a public employee based on her bisexual status alone? I respectfully dissent from the Court's decision not to give its plenary attention to this issue"

- Rowland v. Mad River Local School Dist., 470 U.S. 1009 (1985) (Brennan, J., dissenting)

"I submit that such a crabbed reading of the Fourth Amendment casts aside the teaching of those Justices who first formulated the exclusionary rule, and rests ultimately on an impoverished understanding of judicial responsibility in our constitutional scheme."

- United States v. Leon, 468 U.S. 897 (1984) (Brennan, J., dissenting)

"Taken together these cases abundantly demonstrate the Court's concern to protect the genuine objectives of the Establishment Clause. It is far too late in the day to impose a crabbed reading of the Clause on the country."

- Lynch v. Donnelly, 465 U.S. 668 (1984)

"That Act provides that state law is to govern a civil trial in a federal court 'except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide.' The exception has not been interpreted in a crabbed or wooden fashion, but, instead, has been used to give expression to important federal interests."

- Robertson v. Wegmann, 436 U.S. 584 (1978) (Blackmun, J., dissenting)

"It seems to me that Mr. Justice Douglas was closest to the mark in Poe v. Ullman, 367 U.S., at 517, when he said that the trouble with the holdings of the 'old Court' was not in its definition of liberty but in its definition of the  protections guaranteed to that liberty - 'not in entertaining inquiries concerning the constitutionality of social legislation but in applying the standards that it did.'  The term "liberty" is not, therefore, to be given a crabbed construction.

- Moore v. East Cleveland, 431 U.S. 494 (1977) (White, J., dissenting)

[practicalobscurity]

"... I got a look at Samuel Beckett’s handwriting. That was tops. It is crabbed, which is a word that is often used in novels to describe handwriting, but rarely serves as a realistic adjective to use in everyday conversation."

Mike writes sincerely about his research trip to College Park.

I have a personal fondness for the term "crabbed" since it helps lead off one of the most influential dissents in the history of the U.S. Supreme Court's jurisprudence on the First Amendment, Justice Stewart's in Branzburg v. Hayes:

"The Court's crabbed view of the First Amendment reflects a disturbing insensitivity to the critical role of an independent press in our society."

In Branzburg, the court ruled 5-4 that requiring reporters to disclose confidential information to grand juries did not abridge their rights to freedom of speech and press under the First Amendment. One could easily read the decision as saying that there is no "journalist's privilege" and reporters have to give up their secrets when the government tells them to. However, in a clear and forceful dissent, Stewart explained that, in many circumstances, reporters need to be able to guarantee confidentiality to their sources in order to gather important information and share it with the public, and in those circumstances the government should be at least be required to show that the information is directly relevant to the case at hand, is not available by other means, and is more vital to the ends of justice than the need to protect the reporter's First Amendment rights. Subsequently, many federal courts have recognized a limited journalist's privilege. Stewart's basic reasoning was, for example, the basis for Judge Leonie Brinkema's decision a couple of weeks ago not to force the New York Times' James Risen to disclose his sources for a book he wrote about some of the CIA's more harebrained schemes to deny Iran nuclear weapons capabilities. Stewart's test has also been the model standard for dozens of state "shield laws" which create a privilege for reporters to keep their secrets from the prying eyes of state cops and courts.

It is exceedingly rare that a dissent has this kind of impact, basically making law by opposing the majority decision. You could argue that Stewart's rejection of the "crabbed" approach to the journalist's privilege has helped contribute a great deal to transparency and accountability in this country.

So yeah, I like "crabbed."