A 'Dead Language' Gains New Life in the Senate

Lawyers frequently use Latin phrases, but perhaps no group has thrown around more of this "dead language" this week than members of the Senate Judiciary Committee during the panel's confirmation hearings for Judge Samuel Alito to replace Justice Sandra Day O'Connor on the U.S. Supreme Court. Mike Pesca reports on the role Latin plays in both the substance and the style of legal proceedings.

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As the confirmation hearings focused on Judge Alito's views regarding abortion and the Roe case, the words `stare decisis' have come up repeatedly. That's a Latin phrase meaning `to stand by things decided.' But what does it mean that the Senate Judiciary Committee is making so much of a phrase that most of the American public cannot define? NPR's Mike Pesca has more.

MIKE PESCA reporting:

Some Latin words and phrases have become bona fide parts of English, owing to a certain sine qua non. So in this week's confirmation hearings we heard Judge Samuel Alito make references like these.

Judge SAMUEL ALITO (Supreme Court Justice Nominee): The first step in the analysis for me would be the issue of stare decisis, a protection entitled to respect under the doctrine of stare decisis in that way.

PESCA: In this age of freedom fries and laws with leading titles like USA Patriot Act, it seems like Congress is communicating to a pretty simplistic audience. But then you have these confirmation hearings which deal in arcane topics in foreign phrases bound to lose everyone but lawyers and classics professors.

Professor KERMIT ROOSEVELT (University of Pennsylvania): Latin phrases sound authoritative.

PESCA: Kermit Washington(ph) is a professor of law at the University of Pennsylvania and a novelist.

Prof. ROOSEVELT: Well, I try to write in non-technical language. It's a little bit hard for me because if you spend a lot of time working with legal materials, it gets so ingrained that it's sometimes very hard for you to remember what's part of ordinary English and what's part of lawyers English.

PESCA: Roosevelt is also the great-great-grandson of President Theodore Roosevelt and knows a little bit about politics. He says that reliance on judicial jargon can serve a political purpose for a judge who's trying to skate through a confirmation hearing.

Prof. ROOSEVELT: If you can give a technical answer, if you can put some Latin phrases in it, it's going to sound less like it's your personal opinion, less like it's a view that you can be held accountable for and it's going to be harder for them to evaluate. Interestingly, the people who use Latin phrases the most are prison inmates writing petitions because they really do think that it's a sort of magical spell, you know, and if you put the right Latin phrases together, then you win.

PESCA: One of Roosevelt's least-loved Latin phrases is sub judice. It means the case at bar. A simpler way to express the same thought would be to say, `this case.' Joe Kimble is a professor at Thomas Cooley School of Law in Lansing, Michigan. On his Latin hit list...

Professor JOE KIMBLE (Thomas Cooley School of Law): How about `inter alia,' which just means `among others' or `among other things.' How about `arguendo,' which just means `for the sake of argument.'

PESCA: Kimble, who edits the Plain Language column in the Michigan Bar Journal, notes that arcane language costs our society untold millions of dollars. But he doesn't object to the heavy use of the phrase `stare decisis' during the Alito hearings, even though plain language alternatives exist.

Prof. KIMBLE: Basically it means `to stand by things decided.' That can be cumbersome to try to work into a sentence rather than just saying `stare decisis requires.'

PESCA: Talking about stare decisis makes it seem like your speaking of a much less flexible quantity than precedent, but not really. In fact, during the hearings there arose a more penetrable phrase which gets to the meaning of stare decisis, `super precedent' and sometimes `super-duper precedent.' While understandable, it's not exactly august. And really, what will it lead to, the argument over unenumerated constitutional rights being summed up by the legal theory of `constitution shmonstitution'?

In an exchange with Senator Arlen Specter, Judge Alito himself had this to say about the phrase `super-duper precedent.'

Senator ARLEN SPECTER (Republican, Pennsylvania): You say super-duper?

Judge SAMUEL ALITO (Supreme Court Justice Nominee): Right. Any sort of...

Sen. SPECTER: Good.

Judge ALITO: ...categorization like that.

Sen. SPECTER: I like that.

Judge ALITO: It sort of reminds me of the size of laundry detergent in the supermarket.

PESCA: Presidential campaigning has been derided as no different from selling soap. Judicial hearings have a long way to go before they get to that point. For now, Latin phrases sometimes illuminate a concept but sometimes they serve to keep us in the dark. Better the follow the motto `fiat lux,' which, of course, means `let there be light' or `let there be soap,' depending on your translation.

Mike Pesca, NPR News, New York.

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