Supreme Court case on coordinating conjunctions is a word nerd’s dream

The United States Supreme Court is known for taking up tough language questions. But earlier this month, it began tackling possibly its thorniest grammatical issue yet: Does the word and mean “and”? Or does and mean “or”?

Yes, the court is really arguing over this.

English has just three main coordinating conjunctions — and, or, and but — which join together words or word groups of equal grammatical rank. Yet we need the Supreme Court to distinguish between the two of them.

The trouble dates back to 2018, in what we thought at the time was a shining example of bipartisanship. Remember that bizarre moment when most congressional Republicans, every congressional Democrat, and the neofascist Trump administration came together to pass the First Step Act, the most sweeping criminal justice reform in years? After more than 30 years of Reagan-era mandatory minimum sentences that had seen U.S. prison populations triple, the First Step Act gave judges discretion to apply lighter sentences if defendants met certain criteria, among other reforms. Kim Kardashian was there, lobbying Trump in the Oval Office, while Jared Kushner was wooing Mike Pence, whom the president — Kushner’s father-in-law — hadn’t yet tried to have killed.

It was a weird time.

Turns out it was also too good to be true. Quoting the bill’s language directly (because it’s so convoluted): A judge could lighten a sentence if “the defendant does not have (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

Confused yet? So are the courts. At issue is whether, in writing the law, Congress meant “A, B, and C” or “A, B, or C.” Hanging in the balance are thousands of people — nearly 6,000 a year, according to the U.S. Sentencing Commission — who might be eligible to spend less time in prison. For many of them, their freedom hinges on the Supreme Court’s decision about the meaning of and and or.

While those prisoners await their fate, the justices had fun during oral arguments. The debates that ensued on the highest court in the land were — this is the legal term — nerdy.

Read the oral arguments presented on Oct. 2, and you’ll quickly get lost in arcane details about the distributive properties of em dashes, conjunctive negatives, and words like superfluidity, surplusage, and Calvinball — the latter being a reference to the comic strip Calvin and Hobbes. Sounds like my Friday night.

The mess could have been avoided if the law had been written better, and with fewer negatives (which frequently obscure writing). I mentioned that English has three “main” coordinating conjunctions — and, or, and but — but that ignores backbenchers like nor, which could have been useful. Had the law been written, “A, B, or C,” it would have been clear that only one of the criteria needed to be present in order for judges to apply a lighter sentence. On the other hand, if it had read, “A, B, nor C,” there would be no question that all three would need to be met.

Instead, the Supreme Court had to — or got to — spend its day debating conjunctions. All to figure out what the bill’s authors intended.

It’s not like they’re debating the Bill of Rights; nearly everyone who wrote and voted on the bill is still alive, so they could go ask the authors what they meant (while scolding them for not using a better conjunction).

But at least we got this gem from Justice Elena Kagan: “What we usually do is we try to make writing efficient and not repetitive, and so we take out terms that apply to everything and put it in a format where we don’t have to keep repeating it.”

Concise and precise. That’s the kind of judicial philosophy any wordian can get behind.

The Grammarian, otherwise known as Jeffrey Barg, looks at how language, grammar, and punctuation shape our world, and appears biweekly. Send comments, questions, and subordinating conjunctions to jeff@theangrygrammarian.com.