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05/22/2012

Taniguchi v. Kan Pacific and a Statute's Historical Meaning
Michael Ramsey

In yesterday's opinion in Taniguchi v. Kan Pacific Saipan Ltd., the Supreme Court decided that the phrase "compensation of interpreters" in the Court Interpreters Act, 28 U.S.C. 1920 (6), does not include compensation of persons who translate written documents.  (As a result, it concluded, costs of written translations cannot be awarded as costs against the losing party in litigation; Section 1920(6), allowing awards for "compenstation of interpreters," applies only to oral translations).

Significantly, the Court's majority (Justice Alito, writing for himself and five others) understood the question as involving Section 1920(6)'s original meaning -- that is, the meaning of "interpreters" in 1978, when the statute was enacted (pp. 5-7):

The question here is: What is the ordinary meaning of "interpreter"?

Many dictionaries in use when Congress enacted the Court Interpreters Act in 1978 defined "interpreter" as one who translates spoken, as opposed to written, language. The American Heritage Dictionary, for instance, defined the term as "[o]ne who translates orally from one language into another." American Heritage Dictionary 685 (1978).The Scribner-Bantam English Dictionary defined the related word "interpret" as "to translate orally." Scribner-Bantam English Dictionary 476 (1977). Similarly, the Random House Dictionary defined the intransitive form of"interpret" as "to translate what is said in a foreign language." Random House Dictionary of the English Language 744 (1973) (emphasis added). And, notably, the Oxford English Dictionary defined "interpreter" as "[o]ne who translates languages," but then divided that definition into two senses: "a. [a] translator of books or writings," which it designated as obsolete, and "b. [o]ne who translates the communications of persons speaking different languages; spec. one whose office it is to do so orally in the presence of the persons; a dragoman." 5 Oxford English Dictionary 416 (1933); see also Concise Oxford Dictionary of Current English 566 (6th ed. 1976) ("One who interprets; one whose office it is to translate the words of persons speaking different languages, esp. orally in their presence"); Chambers Twentieth Century Dictionary 686 (1973) ("one who translates orally for the benefit of two or more parties speaking different languages: . . . a translator (obs.)").

Pre-1978 legal dictionaries also generally defined the words "interpreter" and "interpret" in terms of oral translation. The then-current edition of Black’s Law Dictionary, for example, defined "interpreter" as "[a] person sworn at a trial to interpret the evidence of a foreigner . . . to the court," and it defined "interpret" in relevant part as "to translate orally from one tongue to another." ...

The Court also noted that other parts of the statute use "interpreter" in a way that appear to mean only oral translations.

Regardless of whether a textualist approach should focus on a statute's meaning at the time of enactment (see this exchange with Professor Tom Bell), the Taniguchi opinion appears to confirm that the Court's statutory textualism does focus in this way.  Though Justice Alito says several times that he is investigating the phrase's "ordinary" meaning, he relies on enactment-era (or earlier) sources -- carefully seeking out 1978 editions of the leading dictionaries -- and does not consider whether the meaning might have changed in the intervening 30-plus years.  The question, to his mind, is what "interpreters" meant in 1978.

As I've noted before, that approach seems fairly uncontroversial as applied to statutes; it's interesting that, as applied to the Constitution, it gets called "originalism" and becomes the subject of all sorts of theoretical objections.