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Would you pass the butter, Justice Breyer?

The quote of the day comes from Justice Breyer's dissent in Ali v. Federal Bureau of Prisons:

The word ?any? is of no help because all speakers (including writers and legislators) who use general words such as ?all,? ?any,? ?never,? and ?none? normally rely upon context to indicate the limits of time and place within which they intend those words to do their linguistic work. And with the possible exception of the assertion of a universal truth, say by a mathematician, scientist, philosopher, or theologian, such limits almost always exist. When I call out to my wife, ?There isn?t any butter,? I do not mean, ?There isn?t any butter in town.? The context makes clear to her that I am talking about the contents of our refrigerator. That is to say, it is context, not a dictionary, that sets the boundaries of time, place, and circumstance within which words such as ?any? will apply.

A couple of observations: first, this might be the first time in the Court's history that a justice has ever mentioned his wife in an opinion (if I am wrong about this, please leave me a comment).

Second, aside from being amusing, this debate could actually shine some light on how the Court might rule on the D.C. gun case. Here's why. The issue in this case was whether Mr. Ali, a convicted murderer, had standing to sue the Bureau of Prisons for losing some of his personal property when he was transferred from one prison to another. The Federal Tort Claims Act (FTCA) waives the United States? sovereign immunity for claims arising out of torts committed by federal employees, with one important exemption involving "the detention of any ? property by any officer of customs or excise or any other law enforcement officer."

The majority took the Justice Black approach: "any other law enforcement officer" means what it says. Thus Bureau of Prisons employees are protected by sovereign immunity. Justice Breyer argues, as indicated above, that the term must be read in context.

Are you catching on to the analogy to the gun case? The liberals in that case will argue that the 2nd Amendment reference, "A well regulated militia," means that the right to bear arms is not an individual right, and thus governments can place reasonable restrictions on that right.

But you might point out that in Ali, the liberals were in the minority. Isn't that a bad sign for the gun case? No because although Justice Ginsburg sided with the majority in Ali, it is incredibly unlikely she will side with the conservatives in the gun case. On the other hand, Justice Kennedy dissented in Ali, which is a good omen for his position on the Second Amendment.

Don't believe me? The able-bodied folks over at the Legal Times think the same way.

Full post as published by Supreme Dicta on January 24, 2008 (boomark / email).