MONTCLAIR STATE UNIVERSITY
Implicature in Legal
Proceedings as a Pragmatic
Strategy
APLN 605 – LINGUISTICS RESEARCH PROJECT
Roger Cunningham
5/7/2014
Advisor:
Dr. Longxing Wei
Readers:
Dr. Susana Sotillo
Dr. Fadi Hilani
Abstract
This paper explores how U.S. Supreme Court justices and lawyers use conversational
implicatures in oral arguments about a case to help provide legal content while
explaining those contents relationship to the case. They also use implicatures to
converse with each other, to float theories about the eventual disposition of the case. It
considers whether implicatures used by a justice can generally be related to ideological
positions, or signal their final voting position on a case. Two cases were studied and the
results initially show positive results. Conversational implicature analysis may be useful
as a predictor of judicial voting in a case. It does provide a short-hand means for
conveying relevant legal content and theory, which is useful for information-gathering
by justices. The results suggest more research could be useful.
1. Introduction
This paper observes the discourse between lawyers and justices in transactions
at the Supreme Court of the United States (SCOTUS). It applies S. C. Levinson’s
Implicature theory to the oral arguments of judges and lawyers in SCOTUS. It assesses if
justices use implicature to signal views on a case, as well as manage, questions of Law,
facts, subjective positions, aspects of politeness/impoliteness and interactions with
other justices. Two recent SCOTUS cases concerning the subject of marriage
( Hollingsworth v. Perry., 570 US, 2013 and U.S. v. Windsor., 570 U.S., 2013), are
considered. In these cases, lawyers and justices debated the question of marriage
between individuals of the same gender. The paper looks at whether judges speak in a
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legal perspective of neutrality, fact-finding, reasoning or in a judgmental perspective of
false-neutrality, ideology and unequal law.
1.1. SCOTUS and the Law
Pragmatics has paid much attention to the concept labeled implicature, but little
to its applicability to Law, and especially the commentary and decisions of SCOTUS, the
United States’ highest court. SCOTUS has a major role in the U.S. Federal Government
as its third branch. It plays a significant role in Americans’ daily life because its decisions
have far-reaching social effects. Analysts pay attention to SCOTUS’ final written court
opinions, but little to the spoken medium of court argument, even though the standard
one-hour, per case of oral argument is the only public aspect of SCOTUS’ proceedings.
SCOTUS’ functions are otherwise secret, including its decision-making processes. The
nine justices are only publically seen together during oral arguments of a case. One
would think there are links between the formal, written language of court opinions and
the preceding medium of spoken argument. These links are important, although
SCOTUS’ justices have offered differing views about the oral argument process.
Chief Justice Earl Warren did not see oral argument as important, while one of
his successors, William Rehnquist, did. To quote specific instances, Justice John Harlan
of SCOTUS wrote:
…the job of courts…is to search out the truth, both as to facts and the law, and
that is ultimately the job of the lawyers too. And in that joint effort, the oral
argument gives an opportunity for interchange between court and counsel which
the briefs do not…. (O’Brien, 1997, 100).
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Justice Clarence Thomas of SCOTUS offers another viewpoint:
…I don’t see the need for all those questions. I think Justices 99 percent of the
time, have their minds made up when they go to the bench…. (Rombeck, 2002,
B5).
The legal community’s general view is that oral argument in SCOTUS proceedings
isn’t critical. Before the time of argument, SCOTUS judges have received the briefs of
each side to the case, as well as any amici curiae briefs, and it is commonly believed the
justices have carefully studied these and the details of the case . This leads to
conclusions such as Justice Thomas’ that the Justices come to this public hearing with
individual decisions already made. However, there has been research arguing against
this view, e.g. T.R. Johnson’s work using Justice Blackmun’s private papers and
evaluations of oral arguments:
We further show that the probability of a justice voting for a litigant increases
dramatically if that litigant’s lawyer presents better oral arguments than the
competing counsel. (Johnson, 2006, 99).
The idea that pragmatics offers tools to analyze the use of language in law and
such specific institutions as SCOTUS, is a developing one. Lawyers have extensively
studied the language of law but in written forms like SCOTUS decisions. In recent
decades, linguists and pragmatic analysts have looked at legal issues and proceedings,
emphasizing concepts of language, among them, implicature. But they’ve not studied
SCOTUS proceedings.
Why are inferences important to communication and understanding speech?
Because as Levinson puts it:
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…language is sketchy….The fastest sustainable speech rate for English is about 7
syllables per second…This encoding bottleneck implies that linguistic coding is
‘expensive’ and inference is ‘cheap’, and the design requirements for human
communication are: minimize linguistic coding and maximize inference. (Levinson,
2012, 212).
Lawyers use verbal and non-verbal behavior, plus specialized vocabulary, to
accomplish their goal of winning a case, using language tactics without necessarily
realizing the pragmatic language background. One question becomes, does this create
particular implicatures? Certainly legal actions involve pragmatic concepts, such as
deixis, implicature, presupposition, or speech acts, that are part of a definition of
pragmatics.
1.2. Pragmatics and Implicature
Pragmatic theories have been studied in courts and trials lower in the U.S. legal
system’s hierarchy than SCOTUS, which is at the pinnacle. Or they’ve been applied in
Forensic linguistics to the competing voices and relations found in working trial
courtrooms -- for example, the cross-examining lawyer who asks a witness in rapid fire,
stressing certain words:
a) Did you drink?
b) Did you or didn’t you drink some alcohol?
The first question implies to a listener (in American English, and context) the
liquid of alcohol. In b), the lawyer further presupposes an answer with the use of some
(instead of speaking neutral words like “…any alcohol…”). And there is the forceful,
accusatory tone used in these yes/no questions – question forms which allow the
person answering little leeway in the answer. Cultural context and differences are
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important in law. The English, common-law system emphasizes adversarial relationships,
while the Napoleonic system emphasizes the use of trained judges and an inquisitorial
approach. These differences also mean there would be important pragmatic differences
to consider.
This paper tries to determine if certain pragmatic strategies, especially
implicature theory, can be used to assess SCOTUS conversations during oral argument,
which might provide a new way to understand the actions of, and interactions between,
SCOTUS justices. Such pragmatic analysis might also give us better insights into
predicting the outcome of cases.
Pragmatics is a broad field of linguistics. A short definition is:
Pragmatics is the systematic study of meaning by virtue of, or dependent
on, the use of language. The central topics of inquiry of pragmatics
include implicature, presupposition, speech acts and deixis. (Huang, 2007,
2).
The key concepts of implicature are important to communication in terms of what, and
how is, meaning actually communicated. Inferences help fill the gaps in our
communication, e.g. Where’s my drink? On the top shelf. Here the addressee makes an
inferential, logical step to understand the speaker’s intention, +> The drink is on the top
shelf. An implicature is found in the remark, I toured Dedham’s square. The courthouse
was impressive. Here the inference is a new but logical thought, viz. there is a
courthouse in Dedham’s square.
This specialized language and knowledge of meaning requires some discussion of
concept and its background in the discipline of pragmatics. It has received a great deal
of attention over the years since its origin in 1967 with the work of H. P. Grice. Grice’s
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idea has as a primary concept the Co-operative principle, with a subdivision of nine
conversational maxims split into four categories. Using Huang’s simplification of these,
the key implicature properties of a conversation involve:
a. The co-operative principle -- Be co-operative.
b. The maxims of conversation –
1) Quality: Be truthful
i. Don’t say what is false.
ii. Don’t say what lacks evidence.
2) Quantity:
i. Don’t say less than is required.
ii. Don’t say more than is required.
3) Relation: Be relevant.
4) Manner: Be perspicuous.
i. Avoid obscurity.
ii. Avoid ambiguity.
iii. Be brief.
iv. Be orderly. (Huang, 2007, 26).
A common example of Grice’s implicature involves the conjunction but, which joins and
additionally implies a contrast between the compound sentence parts.
a. He is poor but honest. (Implicature tells us there is some contrast between
these two states, i.e. it is surprising that one finds someone poor but also
honest.)
b. He is poor and honest. (There is no contrast between these states of being and
no inference is to be made.)
Considering the above, there is a required inferential meaning to be made by the
listener hearing the conjunction but; one cannot hear, He is poor but honest, and believe
the speaker means there is no distinction between being poor and honest. This ties to
certain properties of implicature which Grice spelled out: cancelability, calculability and
non-detachability, which are evident in the above examples, e.g. the conjunction but
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involves non-cancelability since the implicature is part of the semantic content of the
word, but.
Grice’s theories have evolved as pragmatists have advanced them. One main line
of revision has been to reduce the numerous parts of Gricean implicature. One main
reductionist model has been the Levinsonian theory. Another model is Sperber and
Wilson’s Relevance theory, which expands Gricean theory via work in cognitive
linguistics, establishing a linguistic theory that considers explicature and implicature; it
also revises the approach to how a listener determines the speaker’s intended meaning,
the most salient meaning. Both of these theories are discussed in Part III.
The remainder of this paper is organized as follows:
 Part II discusses the research goal in more detail.
 Part III discusses background on SCOTUS, its oral arguments, and
fleshes out pragmatic ideas and implicature approaches. It reviews
the SCOTUS data available for research.
 Part IV covers the SCOTUS cases and deals with implicature examples.
 The final part provides conclusions and discusses issues of more
research.
2. Research Problem and Objective
“Objectivity” in law is an essential concept of the American legal system. Of
course, defining that term requires some subjectivity since there is no standard or
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universally accepted meaning for “objectivity”. So that becomes the first problem to
address. The second problem is to discover if there actually is some sense of subjectivity
(i.e. ideology and/or political choice) found in judicial conversation, in the forms of
Questions and Answers, or the speech judges and lawyers use, where the Gricean idea
of “What is said.” and “What is implicated.” can help us understand the proceedings?
Can inferences be found that reflect ideological assumptions that may underlie the
eventual court decisions? Possibly implicature can be used to clarify what
objectivity/subjectivity factors exist in judicial thinking. Such examination may show that
attitudinal factors – ideology – can be found which are more important than the “law”
(i.e. the legal principles or doctrines, what the legal text of statutues or Constitutions
say ).
The two cases studied involve social conflict. While the situations were different,
both cases were associated with the notion of same-sex marriage, i.e. legally recognized
marriage between individuals of the same gender. The opinion in Windsor (written by
Justice Kennedy and joined by four others) concerned the struggle over federal benefits
for same-sex couples under the federal Defense of Marriage Act. The majority (five
justices) found the statute violated the Fifth Amendment of the U.S. Constitution, thus
allowing benefits to be extended. The majority opinion in Hollingsworth (written by
Chief Justice Roberts) concerned a federal judicial ruling invalidating a state
constitutional amendment in California – Prop. 8 . The majority decided that the
petitioners had no legal standing to appeal the ruling. The decision rested on a legal
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technicality of jurisdiction rather than broader legal doctrines. Its effect was to allow
California to recognize same-sex marriages.
The two 5-4 decisions were issued together, with the Windsor case’s majority
made up of Justice Kennedy plus the four justices usually labeled the liberal wing of the
court. The Hollingsworth majority, however, was made up of an unusual group of
justices, two conservatives plus three liberals. This may reflect the nature of the
technical legality involved. These cases, given their different outcomes, offer the
opportunity to consider the communications of these judges and their language as they
might suggest the outcomes.
Looking at Gricean and Relevance theory and, more specifically, the Levinsonian
neo-Gricean theory with principles of Q(uantity) – I(nformativeness) – M(anners), this
paper investigates how these pragmatic ideas can be used to evaluate the language
used in SCOTUS discourse. Especially important is the I-principle, which Levinson states
as:
Speaker’s maxim: …Say as little as necessary; that is, produce the minimal
linguistic information sufficient to achieve your communicational ends….
Recipient’s corollary:…Amplify the informational content of the speaker’s
utterance by finding the most specific interpretation, up to what you judge to be
the speaker’s m-intended (= meaning-intended) point….Specifically:
i. Assume the richest temporal, causal and referential connections between
described situations or events, consistent with what is taken for granted.
ii. Assume that stereotypical relations obtain….
iii. Avoid interpretations that multiply entities referred to…; prefer
coreferential readings of reduced NPs….
iv. Assume the existence or actuality of what a sentence is about….(Levinson,
2000, 114-115).
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Levinson’s I-principle is, simply put, say enough to be informative. For example, if
one says, I think he is an intellectual, an I-implicature to be drawn (based on context) is
that other people may not think he’s an intellectual. Also note that what is not said, can
also be informative. How do Levinson’s principles work? How are they evidenced in
SCOTUS discourse? How do the judges and lawyers know their implied meanings will be
recovered by their listeners?
Two key principles of the Relevance theory interact with this last question:
i.
…behavior provides evidence of one’s thoughts. It succeeds in doing so
because it implies a guarantee of relevance. It implies such a guarantee
because humans automatically turn their attention to what seems most
relevant to them….and that this fact…makes manifest the intention….
(Sperber and Wilson, 1995, 50).
ii. In aiming at relevance, the speaker must make some assumptions about
the hearer’s cognitive abilities and contextual resources, which will
necessarily be reflected in the way she communicates, and in particular in
what she chooses to make explicit and leave implicit. (Sperber and Wilson,
1995, 218).
Sperber and Wilson’s theory takes the Gricean notions and expands them to involve two
ideas, explicatures, i.e. an inference that enriches the original utterance to a complete
proposition; its meaning is explicit, the salient meaning. A sign, for example, minimally
says “Student Parking.” Explicature allows the reader to understand the complete
proposition of “Only students allowed to park in this location.” Then the idea of
Implicature follows, i.e. an inference that details the relevant meaning intended, but is
a different logical step, e.g. “Student Parking” infers that no one else can park in the
location marked with this sign. Relevance becomes a two-step process:
…we will call an explicitly communicated assumption an explicature. Any
assumption communicated, but not explicitly so, is implicitly
communicated; it is an implicature. (Sperber and Wilson, 1995, 182).
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The SCOTUS context is unique in law; it’s special for pragmatic analyses because:
a. The rapid verbal interaction in SCOTUS proceedings exemplifies
questioning strategies, with the judges and lawyers using a range
of styles in speaking. What do the questions reflect in terms of
what’s important in a case? Is there an order to a judge’s
questions and does it reflect an order of importance?
b. While power relations are clear in SCOTUS, the Question and
Answer conversation in SCOTUS proceedings involves a group of
equally knowledgeable, elite appellate lawyers and judges; it isn’t
the usual asymmetric case of legal professionals and laymen in a
courtroom. And speakers can be certain their listeners understand
implicit meanings since they are members of the same in-group,
with similar knowledge:
A speaker who is aiming at optimal relevance must assume
that the contextual assumptions required for the
interpretation of the utterance are immediately accessible
to the hearer. ( Blakemore, 1992, 128).
c. SCOTUS justices often interrupt others questioning; what might
they be implying with their words or this behavior? Or:
…should we recognize…tendentious questioning –
questioning that signals a judge’s view of the merits of the case
being argued—provides expressive utility to the
judge….especially…in the case of the Supreme Court, because the
views express by justices in open court are newsworthy…. (Epstein,
Landes & Posner, 2010, 437).
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d. The turn-taking aspects of conversation are also different from
the usual courtroom’s rigid approach. There is a defined turntaking approach in SCOTUS, but here the verbal exchange is much
more like ordinary conversation – judges question lawyers but it is
also thought they direct comments to other judges for
persuasion, …The hour-long sessions in the ornate courtroom also
offer the justices a chance to make their own case – to each
other….(Biskupic, 2006, 1). This lends itself to pragmatic analysis.
e. SCOTUS is situated at legal hierarchy’s summit, with final
interpretative power. It is pragmatic since the account it gives of
the meaning of legal terms is not semantic but in terms of
authoritative acts determining their content. (Canale & Tuzet,2007,
39). The links between power, ideology and law are important to
understanding what SCOTUS language reflects in terms of
society’s social or philosophical views.
This paper has a narrow focus of exploring these pragmatic ideas in two cases
and, therefore, has obvious limitations. But the ideas considered may prove relevant for
broader consideration by researchers of SCOTUS. These concepts could also be applied
to SCOTUS’ written conversation (majority and minority opinions) as reflected in final
rulings. The written conversation could be analyzed in relation to the oral argument.
Given SCOTUS’ position in the American legal system, the mysteries behind its decisions,
and the fact that SCOTUS decisions sometimes, but not always, follow the expected
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ideological-political expectations, extensive research is assured, by the many who try to
understand this court. Linguistic study can undoubtedly contribute to that
understanding.
3. Research Background and Literature
This paper involves a multi-discipline literature search. It’s focus on applying
pragmatics to law means readings will focus on pragmatic concepts, especially
Levinson’s. Implicature is an integral part of any speaker’s meaning. It is often context
dependent. Implicatures can be created using the Gricean Co-operative principle, or by
flouting it (note the use of “+>” to stand for the implicature):
I went to the station and bought gas +> I went to a gas station and purchased gas
at that station.
The detective who asks me, Didn’t you kill your wife in a fit of anger? And I
answer, Yup! You’re right! actually meaning, with my sarcasm, the exact
opposite.
Even sentence meanings, e.g. WH-questions, create implicatures:
Who is the Linguistic’s professor at MSU? +> Someone is a linguistic’s professor at
MSU.
But implicatures are dependent not on just linguistic data but context, background
assumptions, participants’ encyclopedic information and perceptions. The implicature
made above by flouting the Co-operative principle, for example, might not be recognized
if I were speaking to a police detective in Japan.
Grice’s implicature framework has been influential, as has Levinson’s expansion of
it, in understanding implicature’s role in communication and overcoming the slowness of
human speech – the absolute limits on human sound production given their speech
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organs. As Levinson observes about the articulatory bottleneck, …inference is cheap,
articulation expensive.... (Levinson, 2000, 29).
Levinson also differentiates two forms of implicature, generalized vs. particularized. The
latter depends on some particular context assumption, while the former relies on
Levinson’s three general principles which relate to Grice’s theory. To illustrate:
Speaker A) Did the students’ linguistics’ presentations go well?
Speaker B) Some of them got sick.
Generalized implicature: Some but not all of the students became sick.
Particularized implicature: The presentations about linguistics were not as
successful as hoped.
The generalized implicature will always arise but the particular one requires a context
determined by speaker A’s question.
At the same time, law’s language is not everyday language. Law uses specialized
technical concepts and jargon, where, for example, everyday words possess different
legal meaning. A well known example is “reasonable man”. An example relevant to this
paper is “marriage”, which colloquially refers to a socially recognized union of spouses, a
cultural and/or religious institution. Marriage is specifically defined in 36 state statutes or
state Constitutions (as of 2013) as a legal union between one man and one woman
(which is also the definition argued in Windsor, which meant gay couples legally married
in certain states would be treated as unmarried under federal laws). Other states do not
have a specific legal definition of the word, making a broader definition easily possible –
for example, a legal union of a couple regardless of gender.
This different language requires exploration, since it may mean peculiar
pragmatic issues. SCOTUS provides striking differences from the usual courtroom, and
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also defines legal issues. Studying this should be useful in understanding relationships
between law and implicature, as well as assisting in knowing “what is meant.” vs. “what
is said.” when SCOTUS participants speak.
3.1.
SCOTUS
There have been millions of words written about SCOTUS over the years. But one
area of its work that’s relatively less studied is the role of oral argument:
The oral argumentation process, however, has been largely ignored….Indeed,
only a handful of analyses over the last couple of decades address the function of
oral arguments at the Court. (Johnson, et. al., 2006, 112).
In general, the oral aspects of courtroom activity have not been widely studied. Twentyfour years before Johnson’s work, a researcher wrote:
…little systematic effort by social scientists, linguists, or legal scholars has
focused on spoken language. …Passing attention is paid here and there to spoken
legal language, but there are virtually no attempts to deal directly and
extensively with it. (O’Barr, 1982, 23-24).
This explains why the spoken interactions of judges, lawyers, clients and other
participants in law are worth study. SCOTUS allocated more than its usual one hour of
oral argument to each of these two cases on marriage equality (marriage between those
of different gender vs. those of the same gender), as it does for some high-profile cases.
This creates the impression that argument does matter.
Johnson’s, et al study (2006) of SCOTUS oral argument is a recent analysis of
such argument, although from a political scientist’s perspective. 539 transcripts of
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SCOTUS oral arguments, along with recently released papers of Justice Blackmun on his
grading of oral arguments, were reviewed. These authors concluded:
…the judges find oral arguments to be an important part of the Court’s decisionmaking process and that the quality of arguments…affects the justices’ votes.
(Johnson, et al, 2006, 112).
Following this work, Johnson has found further support to conclude that oral argument
at SCOTUS matters, Johnson, et al (2009).
Data on SCOTUS oral arguments, as well as decisions, is publically available at the U.S.
Supreme Court website:
supremecourt.gov/opinions/12pdf/12-144 (Hollingsworth).
supremecourt.gov/opinions/12pdf/12-307 (Windsor).
supremecourt.gov/oral_argument/argument transcript.
The Hollingsworth oral argument is at:
http://www.supremecourt.gov/oral_arguments/argument_audio_details.aspx?
argument=12-144.
The Windsor oral argument is at:
http://www.supremecourt.gov/oral_arguments/argument_audio_details.aspx?
argument=12-307.
Transcripts of the arguments are in this paper’s Appendix. Further, Audio recordings of
the oral arguments are available as noted above and will be referred to as appropriate.
3.2. Implicature
Gricean theory has evolved since 1967, with the majority of researchers trying to
reduce its maxims. Levinson revises Gricean maxims to three propositions, considering
the speaker’s and listener’s role:
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Q-principle: Speaker’s maxim—Do not provide a statement that is
informationally weaker than your knowledge of the world allows, unless providing a
stronger statement would contravene the I-principle….
Recipient’s corollary—Take it that the speaker made the strongest statement
consistent with what he knows… (Levinson, 2000, 76).
Example: The lawyer believes his client is not guilty. +> The lawyer doesn’t know if
his client will be found in court guilty or not guilty.
I-principle:
Speaker’s maxim-- …Say as little as necessary, that is, produce the
minimal linguistic information sufficient to achieve your communicational
ends(bearing the Q-principle in mind)….
Recipient’s corollary--…Amplify the informational content of the
speaker’s utterance, by finding the most specific interpretation, up to what you
judge to be the speaker’s m-intended point….(Levinson, 2000, 114).
Example: Roger entered the court and noise began. +> Roger entered the
courtroom and because of that, the noise started.
M-principle: Speaker’s maxim--Indicate an abnormal, non-stereotypical
situation by using marked expressions that contrast with those you would use to
describe the corresponding normal, stereotypical situation….
Recipient’s corollary—What is said in an abnormal way indicates
an abnormal situation, or marked messages indicate marked situations….(Levinson,
2000, 136).
Example: Roger caused the pistol to be pointed at you. +> Roger had a pistol
pointed at someone but done in some unusual way. (This statement is made in a
marked way, not the normal – unmarked-- way of saying, Roger pointed the pistol….)
Huang states Levinson’s principles more simply – and effectively:
Q-principle:
Speaker—Do not say less than is required….
Addressee—What is not said is not the case.
E.g. Roger is happy. +> Roger is neither sad nor over-joyful.
I-principle:
Speaker—Do not say more than is required….
Addressee—What is generally said is stereotypically and
specifically exemplified.
E.g. Roger and Marina bought a car. +> They purchased the car
together, not that each one purchased a car.
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M-principle:
Speaker—Do not use a marked expression without reason.
Addressee—What is said in a marked way is not unmarked.
(Huang, 2007, 41,47,50).
E.g. Roger is not unrespectable. +> Roger has some degree of
respectability (in contrast to an unmarked statement, Roger is
respectable).
The M-principle’s formation seems, in many cases, unneeded to explain what are
otherwise I-implicatures. For example, Levinson uses the M-principle to explain these
rival meanings:


He was reading a book. +> He was reading an ordinary book.
He was reading a tome. +> He was reading some massive, weighty
volume (Levinson, 2000, 138).
The difference above lies in the lexical meaning of the last words, with tome readily
lending itself to a stereotype inference, an I-implicature.
The I-principle is a main aspect of this paper’s analysis. For this principle to work,
it requires shared background knowledge or information. It works because a listener
knows the best translation for a speaker’s utterance is the most informative
interpretation; it has to be consistent with what the listener believes is true; usually it’s
the first interpretation coming to mind.
Huang, using Levinson’s work, lays out fifteen types of I-implicatures (Huang,
2007, 47-49), important to this paper’s analysis; a sample follows.
a. Specialization of spatial term: State how the knife was in the body?
+>…the knife’s sharp-edged blade part was….
b. Coreferential expression: So you say Roger said that he had a drink
before driving? +>…Roger said Roger had an alcoholic drink….
c. Adjective interpretation: You said the stop light was green as you
approached the intersection? +>…all of the electric light showed
green.
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d. Possessive interpretation: Now Detective Watson’s theory is that he
was put on a stretcher. +>The theory Detective Watson formulated….
e. Inference to stereotype: Do you live with your wife, sir? +>Are you
married and do you live with a female?
f. Noun-noun compound: The opposition’s same-sex campaign was
horrible. +>The opposition’s campaign against marriage by individuals
of the same gender….
Levinson lays out rules for the application of these three principles, with a set of
priorities to consider: Q>M>I, where “>” means “resolves inconsistency”(Levinson, 2000,
39). Levinson lays out an example of this priority, Q>I:
John drank three beers and drove home, if not in the reverse order.
(Levinson, 2000, 158).
The Q-inference of the second part +>John drove home first and then drank
three beers vs. the I-inference of the first part +> John drank three beers and
then drove home: The later clausal condition defeats the inconsistency since
its inference suspends the earlier I-implicature.
Filtering the implicature forms to gain consistency is an important process for the hearer.
Others, such as Horn and Sperber/Wilson, took other approaches, reducing the maxims
to a dual principle approach. But Horn’s most substantial contribution to implicature
involves the idea of scalar implicatures. It evolved out of his two principles, which create
a lower and upper bound for implicature meanings. For example:
Roger ate many of the cookies. An upper-bound meaning of this statement
is, …some if not all of the cookies. The lower bound meaning is, …some but not
all of the cookies.
Horn scales involve many lexical and grammatical items, e.g. connectives (and,
or); quantifiers (some, many, all, most); adverbs (always, sometimes); degree adjectives
(hot-warm, good-excellent); verbs (believe, know, think, predict). The scaling comes from
lexical meaning, e.g. the semantic differential between some and all, or strong and weak,
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and also from conversational context. For example, the connectives’ lexical meanings
can create different understandings:
Roger or Marina will come today. +>It is not true that Roger and Marina will
come, only one will. But saying, Roger will come today and Marina will not, or
Roger will not come today and Marina will come. In the former, or has its usual
disjunctive understanding, while in the latter case, it has an inclusive meaning.
Note that Levinson’s I-principle, Say as little as necessary…, approximately corresponds
to Horn’s R-principle, Make your contribution necessary. Say no more than you must….
Sperber and Wilson’s model uses cognitive processes. They lay out the
Relevance thesis with two principles:
(1) Human cognition tends to be geared to the maximization of relevance.
(2) Every act of ostensive communication communicates a presumption of its own
optimal relevance. (Sperber and Wilson, 1995, 260).
The thesis uses mental processes to explain speaker-hearer interaction, given
the interaction context:
…The organization of the individual’s encyclopedic memory, and the mental
activity in which he is engaged, limit the class of potential contexts from which an
actual context can be chosen at any given time… In verbal comprehension in
particular, it is relevance which is treated as given, and context which is treated
as a variable…. (Sperber and Wilson, 1995, 138, 142).
Levinson challenges many aspects of this theory: …the theory…never quite gets
off the ground for two reasons: the first is lack of internal coherence and clarity, and the
second uncertainty of external application. (Levinson, 1989, 462).
Grundy, on the other hand, states a major strength:
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Relevance theory is to be preferred over other accounts of utterance
understanding to the extent that it recognizes and can account for the fact that
not all utterances are successfully understood, and that a particular utterance
may be understood in different ways and to different degrees by different hearers.
(Grundy, 2000, 111).
Simply put, does one hear what one wants to?
Grundy points out other strengths in the traditional views of implicature vs.
relevance theories. In the example, Roger arrived and he sat down +>Roger arrived and
Roger sat down—a coreferential type of I-implicature is given, so that the pronoun
reference is clear. Under relevance theory, the hearer derives the maximization of
relevance based on common understanding that a speaker only says what is relevant
and true for the hearer – the interpretation of the pronoun is the most relevant.
One problem in the theories of implicature, however, is the differing terminology
among its models. This confuses the linguistic student, as well as confusing the analysis
of the various theories. Levinson demonstrates this in a diagram (Levinson, 2000, 195).
3.3. Legal Pragmatics and Implicature
While courtroom action is a subject of sociolinguistics, pragmatic issues in law’s
language are common:
…In the context of a court trial the process of inferencing and …implicature
might constitute useful tools both for the interrogators in asking questions and
for the interrogated in providing or evading answers…. (Kryk-Kastovsky, 2006,
15).
An example is the trial lawyer’s infamous question, When are you going to stop beating
your wife? reflecting the pragmatic issue of presupposition. Or consider the common
problem in law – and language – of ambiguity: A speaker says, Men and women who are
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62 years old or older are entitled to Social Security benefits. There is an ambiguity
created by the sentence’s conjunction and phrase …and…who are…. The speaker can
correct this by drawing a syntactic tree; but a listener resolves the ambiguity by
pragmatically thinking of the implicature, created by the I-principle (conjunction
buttressing, in Levinson’s labeling), as well as the speaker’s likely phonological stress
markings, so that the referent is to both genders. Or consider the fact that SCOTUS
decisions are final; they are the interpretative acts of a court at the top of the judicial
hierarchy and therefore pragmatic as respects SCOTUS’ authoritative role.
Inference and its complexity in law is further illustrated by contract law, where
the idea of “contract” requires certain key elements be found. Among these is the idea
of “promise.” At a garage sale, where a sign, “Vehicle for $10,” hangs on the garage
building, with a bicycle standing in front of the back of a car, someone says, I promise to
buy the vehicle for $10.00. There are a number of inferences in this statement: a vehicle
is for sale; someone can legally sell it; I have a duty to buy it; Jones has an expectation
that I will buy the vehicle, and that I have or can get ten dollars. The “contract” made in
this statement is based on some context, which lawyer A and lawyer B can treat
differently: “vehicle” is a vague term and its reference is ambiguous; maybe the
speaker’s understanding that it was the car was wrong; maybe the bicycle was meant,
which maybe should have been understood because of the requested price.
The legal process allows two lawyers to argue the contract’s validity, with the
concept of “vehicle” giving rise to various sets of inferences. A judge decides the correct
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inference, one that is also the definitive legal pragmatic content. The interactions of the
original parties, the lawyers, and the judge may all be different, but all are arguing the
concepts of contract and property within a context, within a general legal view of such
concepts, and in the American legal style of an adversarial system of law.
Verbal interactions in a court, especially SCOTUS, reflect the law’s complex
language, a range of speaking styles, questioning strategies and pragmatic strategies
that depend on inferences. Law’s particular rigid language use can be demonstrated by
the legalistic concept of a “leading question”, e.g. the lawyer who articulates, All right.
So you say you beat your wife Monday night? Another lawyer will object because the
question becomes a leading question, i.e. the first sentence in conjunction with the
second sentence’s use of, So you say… suggests the answer.
Courtroom discourse, unlike everyday discourse, also carries more of a social
sense and therefore creates social and/or moral inferences, which need to be controlled,
such as the leading question just discussed. In another example, Tannen reviews a case
of assault and rape, and how a lawyer uses questions to make the facts appear different
from the victim’s alleged portrayal, e.g. one question was:
…But not before, according to you, he took two ten-dollar bills out of his pocket
and handed them to you, true?... Per Tannen, “According to you” implies “even
you admitted this.” “But not before” implies she made sure to get paid – the
latter inferring greed and/or immorality. (Tannen, 1998, 139).
The lawyer inferred moral issues by the question’s word choices.
In SCOTUS, the Constitutional claims of citizens are decided. Social and moral
interests come to the forefront in such discussions and decisions. Emotional factors are
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obvious, where implication can be used to avoid or lessen emotional debate among the
judges and lawyers – an important interface between implicature and law. This paper
explores this in two recent cases on same-sex marriage.
4. SCOTUS Cases and Implicature
This section considers two aspects of implicature:
1. The kinds of implicature found in two SCOTUS cases involving issues of
constitutional law, emphasizing types under Levinson’s I-principle.
2. The question of whether or how implicature might provide guidance about
SCOTUS Justices’ intent on a case’s decision.
Constitutional law is a legal realm where interpretations are of major importance.
SCOTUS, in these two cases, made very different decisions about the question of
marriage equality. In both cases, SCOTUS spent much time in oral argument on the
question of standing, i.e. whether a plaintiff is a proper party to be involved in a case, or
whether the court has jurisdiction to decide the case. Were there indications in oral
arguments of these cases that they would be decided differently? In Windsor, the court
reached a decision based on the case’s merits even though it spent much of the
advocacy time on the question of standing rather than the merits. But in Hollingsworth,
the court decided that plaintiffs had no standing, after spending much of the advocacy
time on that question; it did not reach the case’s substantive issues.
4.1. Levinson’s I-principle at Work
Implicature examples in the oral arguments under review range from the simple,
straightforward kind, e.g. an I-implicature of noun-noun compound:
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The issue of same-sex marriage certainly implicates profound and deeply held
views.…(Windsor, 55, line 22-23).
The compound noun, “same-sex marriage” implicates: +> marriage between two
humans of the same gender, in contradistinction to marriage between two
heterosexuals. The word, marriage, also implies, in law and common understanding,
certain features – one, in America, being a legally binding, enforceable contract
between two people.
And implicature can range to more complex, legalistic forms. Lawyers are not
known for a simplistic way of saying things. They seem, to the layman, to purposefully
use language in unusual and unclear ways. An excellent sample of this, and implicature,
is found in the Hollingsworth case, where attorney Cooper, arguing for the petitioners,
said about marriage and older people:
…It’s designed…to make it less likely that either party…to that marriage will
engage in irresponsible procreative conduct outside of that marriage….Society
has an interest in seeing a 55-year-old couple…that intends to engage in a
prolonged period of cohabitation to reserve that until they have made a marital
commitment….(Hollingsworth, 26, lines 16-21).
The speaker’s beginning, It’s, refers to the idea of marital norm (see below), while
Cooper’s remark, with its verbiage, …irresponsible procreative conduct outside of that
marriage…., illustrates Levinson’s M-principle, Do not use a marked expression without
reason, Apparently because of the SCOTUS setting of seriousness, of argument that
borders on the philosophical, this attorney thought it too colloquial to directly talk
about affairs, adultery and out-of-wedlock children. Instead, he used an unusual turn of
phrase to indirectly communicate the idea of older men having affairs with younger
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women outside of marriage and the possible consequences thereof. Cooper’s arresting
phrase implies sexual conduct outside of marriage, which Cooper argues throughout this
case is a societally sanctioned conduct in marriage, whose purpose is the responsible
creation of children. Leading into this exchange, implicature is also found in Cooper’s
statement:
…the marital norm which imposes upon that couple the obligation of fidelity….
(Hollingsworth, 26, lines 9-10). +> the norm of marriage of heterosexual
fidelity ,monogamy …
An I-implicature using inference to stereotypes is evident in the words, marital
norm, which in American society implies fidelity, monogamy, a union of two people of
different genders, children, and various responsibilities to the children as well as
between the two parties. And for the religious , the term implies cultural concepts
relating to God and beliefs. Even within this inference, there are further implications, e.g.
the idea of “gender” which we think of as an innate quality of sexuality – male/female.
Examples, in addition to those mentioned, of straightforward I-implicature forms follow
(using Huang’s classification of types, with the I-type’s label beginning the example):
Adjective interpretation: …I see my red light is on….(Hollingsworth, 58, lines 1718). +> the whole surface of the light changed color to red….
“My red light” is a general statement; but it implicates a more specific meaning
via the common knowledge of speaker (the attorney) and listener (Chief Justice) that
the entire light in front of speaker —not just part of it -- became fully red; and it also
tells (metaphor’s implication) the speaker, and recipient of his words, that speaking time
is finished.
Coreferential interpretation: …to think that the State is going to delegate to
people who don’t have a fiduciary duty to them [sic], that it’s going to delegate
the responsibility of representing…. (Hollingsworth, 7, lines 23-25). +> …to think
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that the State is going to delegate to people who don’t have a fiduciary duty to
the State, that the State is going to delegate the responsibility of representing….
There is an inference in …to think that the State… that makes essential the assignment
of the following pronoun references to the preceding referent, State, for understanding.
Conditional perfection: …If you’re not dealing with this as a class question, then
why would you say that the Government is not free to discriminate against
them?... (Hollingsworth, 15, lines 18-20). +> If and only if you’re not dealing with
this as a class question and only a class question, then ….
The If conditional clause implicates ideas of a single class in question, or possibly the
opposite idea “If you were dealing with this as a class question, you would say….”
Conjunction buttressing: …The governor…frequently appoints an attorney where
there’s a perceived conflict of interest…and that person would have a
responsibility for the State and might have responsibility for attorneys’
fees….(Hollingsworth, 31, lines 2-9). +> The governor…appoints an attorney…and
thereby that person would have responsibility….
the sequence of events is conjoined by implication; the succession inference, the
governor…appoints…and that person (thereby)… connects the thoughts for the listener.
Conjunction buttressing: …but I think the most apt of the doctrines, although
they are overlapping and reinforce each other, the most apt is standing…
(Windsor, 13, lines 11-13). +> …although the doctrines are overlapping and
therefore reinforce each other….
There is a coreferential I-implicature in this statement, as well as a conjunction, “and,”
that implicates the information that one action necessarily involves a next action – the
two thoughts are joined together by the listener. The conjunction is, semantically,
inclusive
Frame-based reference: …Unless there are other questions, I will sit down….
(Windsor, 52, lines 22-23). +> Unless there are other questions, instead of
standing I will sit…
In this instance, the speaker implies what must be an existing fact and a perceived
framework of being upright on feet, i.e. “…I will stop standing and sit down….”
Indirect speech act: …I’m sorry?... (Windsor, 30, line 24). +> I don’t understand.
Could you elaborate….
Here the speaker uses an idiom commonly understood to imply, based on context, a
request for more information.
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Negative raising: …I don’t know why you don’t mention some concrete
things…(Hollingsworth, 19, lines 5-6). +>I know you do not mention some
concrete things but you should….
Certain verbs convey opinions, attitudes or states of knowledge; “know” is an example
of this and implicates that the speaker is thinking, in fact telling the listener, …I know
you could mention some concrete things….
Possessive interpretation: …the House’s prerogatives aren’t at stake here….
(Windsor, 38, line 4). +>The prerogatives belonging to the U.S. House of
Representatives….
Rather than using the of-construction, the speaker uses the briefer contraction form,
“…the House’s…” to imply a close relationship between the “owner” and the owned
properties. The two possessive forms, formal and informal, allow a speaker to convey
information in the most relevant way to the speaker.
Possessive interpretation: …There’s $300,000 that’s going to come out of the
Government’s treasury… (Windsor, 14, lines 15-16). +> There’s $300,000 that’s
going to come out of the treasury of the U.S. Government….
Besides the notes above, the possessive contraction form lets the speaker present a
more positive inference than the formal approach. Saying …that’s going to come out of
the treasury of the U.S. Government… almost raises Levinson’s M-principle as a “marked
expression” and a different speaker’s intent
Proper name narrowing: …that Congress couldn’t specify members of Congress in
that context even where the measure depleted or diminished powers of
Congress…. (Hollingsworth, 32, lines 4-6). +> that the House of Representatives
and the Senate of the United States couldn’t specify…
Based on common, shared knowledge, a general term is used which a listener, through
implications, both maximizes and narrows to more specific meanings, e.g. “Congress”
implies the two parts of one branch of the U.S. Government.
Proper name narrowing: …In Chadha, the Court was…(Windsor, 16, line 25). +>In
a previous case that came before SCOTUS, called Chadha.…
“Chada” must be narrowed if it is to have meaning for the speaker and listener. Based
on shared knowledge of legal cases and their facts that have applicability to the Windsor
case being debated, the parties use the abbreviated reference to convey a complete
legal reference. This is a legal convention in trials.
Systematic ambiguity: …if there were a way to cabin the arguments that are
being presented to you to California, then the concerns about defining marriage
in California could be confined to California….(Hollingsworth, 20-21, lines 25 and
1-3). +> …if, and only if, there were a way to cabin the arguments that are being
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presented to you to the entire state of California (i.e. not to districts of the state,
and not to other states of the U.S.)….
There is a lexical issue in …cabin the arguments…to California…; how is the term
“California” to be understood? Implicature solves this by common knowledge, and a
listener’s understanding that the speaker’s inference is to the whole territory of that
political-governmental entity and just that entity. This speaker intent is clearly
understood in the Justices’ prior and later references …to states other than California…
(Hollingsworth, 20, line 9). or …There are some 40,000 children in California….
(Hollingsworth, 21, line 12).
4.2. The I-principle at Work in Legal Practice
Unlike the preceding I-implicatures, complex implicature forms, where a legal
understanding and meaning is implied, are found throughout legal cases. They often
involve the noun-noun compound form (e.g. Due Process Clause, Right to Bear Arms,
Cruel and Unusual Punishment), probably because of the law’s predilection for labeling,
and longhand rather than shorthand expressions. Some examples of complex
implicatures follow.
In the Windsor case, there is much discussion of constitutional theories. One
example is:
…But that has never been your approach, especially under rational basis or even
rational basis-plus… (Windsor, 74, lines 19-21).
The noun-noun I-implicature of “rational basis” would certainly be understood in
normal terms, +> But…using a special basis of reasoning or even a strengthened basis of
reasoning…. But there is a special legal meaning to rational basis, which the lawyer
saying this knows all his listeners - know, i.e. a constitutional standard applied by courts
to legislative acts which presumes their constitutionality. This standard means there
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should be minimal judicial review and requires plaintiffs to overcome the
constitutionality presumption. To mention an example of Levinson’s Q-type implicature
involving this idea, found later in the argument:
…Rational basis, Mr. Clement – is a problem in your briefing. You seem to say and
you repeat it today that there is[sic] three tiers, and if ….(Windsor, 111, lines 710). +> …and you repeat it today that there is three (not more or less) tiers…
The Q-type involves number words such as “three” and relates to Horn’s idea of
scalar implicatures. In the SCOTUS context, all parties realize that the legal notion of
“rational basis” involves three levels of form for judicial review, with “rational basis”
being the least onerous form. The other two forms (see below) are considered more
stringent, and relate to other phases of constitutional review as noted below.
The lawyer, Mr. Clement, goes on to say,
…This Court, even when it’s applied more heightened scrutiny….(Windsor, 74,
lines 22-23).
The implicature of this compound suggests a court uses different standards of judicial
review and could be read as, +>Even when this Court’s review has been closer, more
searching….
But again, in constitutional law, the concept of heightened scrutiny is understood
to refer to levels of “intermediate” or “strict” scrutiny in judicial review of constitutional
questions – which further implies that a plaintiff’s case can be potentially determined by
the level of constitutional review that a court determines to use. The structure of the
tiers of scrutiny is an important characteristic of another constitutional idea, Equal
Protection analysis, discussed below.
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Complicated legal referencing and inferencing is found in Justice Kagan’s remarks,
… or do we think that Congress’s judgment was infected by dislike, by fear, by
animus, and so forth….(Windsor, 72, lines 15-17).
There is an I-implicature of possessive construction in this, +> the judgment of
members of the U.S. Senate and House of Representatives (“Congress”) – the specific
interpretation we automatically make. But there is also an inference we might overlook
when Justice Kagan says, “animus”. This word’s legal semantic meaning implicates
specific understanding in constitutional law, which the participants in Windsor
recognized; consider Chief Justice Robert’s later comment:
…So that was the view of the 84 Senators who voted in favor of it and the
President who signed it? They were motivated by animus? (Windsor, 91, 14-16).
Roberts takes for granted listeners’ understanding of the last word. Animus is an Iimplicature example of lexical narrowing. It’s a specific but unclearly defined term of art
in constitutional assessments. SCOTUS narrowly defined it, in Romer v. Evans, as a…bare
desire to harm a politically unpopular group. Other SCOTUS cases have more broadly
defined it, looking at mindsets involving fear, stereotype or bias, which create laws with
distinctions between societal groups – or laws which lack a rational basis (discussed
above). Also consider a remark in Hollingsworth’s oral argument. “Animus” isn’t
mentioned or discussed in this case; however, the plaintiff’s lawyer implicitly raises the
idea when discussing if traditional marriage definitions reflect an unconscious bias
and …a bare desire to harm (Hollingsworth, 13, line 9). Because of the lawyers’
preparation for these constitutional cases, the phrasing was no doubt recognized, even
if no comment was made:
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…that the traditional definition of marriage insofar as – insofar as it does not
include same-sex couples, insofar as it is a gender definition is irrational and can
only be explained, as a result of anti-gay malice and a bare desire to harm….
(Hollingsworth, 13, lines 4-9).
The expression, “animus,” can closely relate to ideas found in other
constitutional concepts, such as “rational basis”, where the idea can be used to find a
law unconstitutional, no matter its “rational basis.” In fact, constitutional interpretation
uses a finding of the absence of “rational basis” in a statute to imply the existence of
“animus.” Also note the implicature in Justice Kagan’s use of a rhetorical question, when
the Justice discussed the question of animus:
…Is that what happened in 1996?.... (Windsor, 74, line 15). +>The speaker
believes or at least expects the answer is yes.
Here is an indirect speech act whose tone, when listening to the argument, of positive
assertion implicates an answer of Yes.
One also finds the doctrine in Equal Protection analysis and the Equal Protection
Clause, oft mentioned in Windsor’s case:
…told the Executive Branch to comply with the Equal Protection
Clause….(Windsor, 9, line 16-17).
…The equal protection analysis in this case should focus on two fundamental
points….(Windsor, 80, line 19).
…I think the question under the Equal Protection Clause is .…(Windsor, 96, lines
17-18).
The noun-noun compound could be read, +> In this case, the analysis of protections that
are equal. But the reference is to a legal analysis about fairness, discrimination and the
U.S. Constitution’s 14th amendment (where the Equal Protection Clause is found).
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SCOTUS has deemed Marriage a fundamental right (Turner v. Safley, 1987). These two
cases concerned whether same-sex couples had equal, fundamental rights to marriage.
In Windsor, the Equal Protection issue was DOMA’s provision defining marriage, for the
federal government, to exclude same-sex marriages. In Hollingsworth, an amendment
to a state’s constitution defining marriage to exclude same-sex couples, after the state’s
Supreme Court decision that the state Constitution’s Equal Protection proviso allowed
same-sex marriage, was at issue. Equal protection analysis will also implicate
automatically, in lawyers’ thinking, previously discussed concepts, such as “heightened
scrutiny.”
4.3. Discussion of Implicature at Work
What the preceding analysis further evidences is a SCOTUS speaker makes
assumptions about the audience – assumptions about their constitutional law
knowledge relative to the cases argued, and knows implicatures will be understood
because:

There is a regularity of association and interpretation in constitutional law
between, for example, noun-noun compounds and their semantic legal
meanings;

In the context of constitutional law and for the expert participants at SCOTUS,
the phrases possess associations with pragmatic inferences. We’re in a legal
setting, using legal words and language, which has a “restricted code” that
registers with these experienced lawyers and judges. All the parties share the
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same knowledge of what is important to understanding the concepts in a
speaker’s reference.

The participants automatically, systematically process references which have
preferred and precise interpretations, evident, for example, in the back-andforth discussion about Chadha in the Windsor case.

The interplay among the components of constitutional doctrines and their
inferences are an inherent part of the exchanges among the Justices and
lawyers, as well as relevant to the interpretation of constitutional law which
SCOTUS decisions determine.
Are there hints of the ultimate SCOTUS decisions in oral arguments, of how
justices perceive the case? In Windsor, unlike Hollingsworth, there are many comments
by the Justices about the rapidly changing societal attitudes toward questions of
marriage equality and LBGT individuals, which might suggest a concern with how
constitutional issues apply to these individuals. Justice Scalia says, in talking about the
number of states allowing a gay couple to marry,
…Nine. And…and so there has been this sea change between now and
1996….(Windsor, 107, lines 3-4). +>…and so there has been this substantial
change in the number of states permitting same-sex couples to marry…
Of course, in listening to the oral argument, one might conclude that Scalia’s remark,
“sea change,” is said with some sarcasm; it’s intended to highlight only nine states in 17
years had changed laws to allow such marriages. By intonation as well as the choice of
words, the Justice makes another implication, one of doubt that the citizenry is ready to
approve redefining “marriage”. Chief Justice Roberts later remarks:
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…I suppose the sea change has a lot to do with the political force and
effectiveness of people representing, supporting your side of the case?...
(Windsor, 107, lines 17-20).
and still later:
…As far as I can tell, political figures are falling over themselves to endorse your
side of the case….(Windsor, 108, lines 12-14). +>…people in politics are quickly
endorsing your opinion of the arguments about this case, i.e. endorsing samesex marriage….
The Chief Justice implies there is real and significant change happening. Consider
attorney Kaplan’s remarks (for plaintiff):
…the Federal Government has always handled that and has never
before…separated out a class of married gay couples solely because they were
gay….(Windsor,101, lines 11-14).
…and you’re having discrimination for the first time in our country’s history
against a class of married couples.…(Windsor,104, lines 11-14).
The Justices are hearing about social changes and acknowledging in their
remarks the changes underway. In these remarks and implications, one could hear both
suggestions of previously inconceivable constitutional interpretation, i.e. in 1996, a
question before SCOTUS of civil rights for LBGT individuals wouldn’t be thought possible
by the majority of Americans, and that the court might reach the merits in Windsor.
This latter suggestion is also implied in various Windsor discussions about the doctrine
of federalism. Justice Kennedy says succinctly:
…The question is whether or not the Federal government, under our federalism
scheme, has the authority to regulate marriage….(Windsor, 76, lines 14-16).
Earlier, he said:
…in our society means that the Federal government is intertwined with the
citizens’ day-to-day life,…you are at …real risk of running in conflict with what
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has always been thought to be the essence of the State police power, which is to
regulate marriage….(Windsor, 59, lines 20-25).
The attorney for the defendant argues that the Federal government does have an
interest in defining marriage:
…the basic principles of federalism suggest that as long as the federal
government defines those terms solely for the purposes of Federal
law….(Windsor, 56, lines 7-11).
Justice Ginsburg weighs in later:
…as Justice Kennedy said…so you are really diminishing what the State has said is
marriage. You’re saying, no, State did two kinds of marriage, the full marriage
and then…skim-milk marriage. (Windsor, 71, lines 11-16).
In this sequence of conversation, implicatures abound and suggest concerns with
important constitutional distinctions that some of the Justices want to address, i.e. do
the states alone decide marriage definitions and issues, or is there a federal role. To
review some of these implicatures:

…the Federal government (I-type, proper name narrowing) infers …+> the
government of the U.S. constituted by the fifty states, consisting of three
branches, etc.;

…State police power (I-type, noun-noun compound/lexical narrowing) infers +>
the authority of states in the U.S. under the 10th Amendment to the U.S.
Constitution to decide and regulate societal behaviors, such as marriage;

… full marriage and then…skim-milk marriage.(a M-type implicature, using
metaphor as well as marked expression ) infers +> a marriage that is fully and
legally recognized vs. one that is partially and not fully recognized in law.
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In Windsor, five SCOTUS Justices agreed to decide the substantive, constitutional
issues; but the mixture of Windsor Justices changed in the decision about Hollingsworth
-- and its constitutional issues were not decided. Instead, the technical question of
standing, i.e. the defendants of California’s Proposition 8 (who were sponsors of that
initiative) lacked standing, decided the case. Under today’s constitutional procedure,
there must be a showing by and of harm for the plaintiffs – that they have something to
lose in the case; without this demonstration of “injury”, SCOTUS dismisses a case. This
decision was presaged in Hollingsworth’s oral argument when certain Justices
questioned whether the court should have agreed to hear the case:
…Have we ever granted standing to proponents of ballot initiatives?...
(Hollingsworth, 3, lines 24-25). +> (I-type, membership categorization) Ballot
initiatives have supporters and have they been previously allowed by SCOTUS to
argue the merits of the case before it?
…the problem with this case is that you’re really asking…for us to go into
uncharted waters…. (Hollingsworth, 47, lines 20-22). Implied is a problem, and
Levinson’s M-principle is evident in the metaphor, +> If you were really asking us
to go into charted waters, there would be no problem.
…If the question is letting the States experiment and letting the society have
more time to figure out its direction, why is taking the case now the answer?...
(Hollingsworth, 64, lines 5-8). This is a clausal implicature, Levinson’s Q-principle.
+> For all the speaker knows, accepting the case for decision now may be bad,
because society needs more time to figure out its direction.
Do conversational implicatures reflect the ideological positions of SCOTUS judges?
Judicial decisions must be seen in the context of their facts, time periods, and social
context, as must oral arguments and implicatures. This is certainly evident in Windsor
where the attorney argued:
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…back in 1996 people did not have the understanding that they have today….It
was based…an incorrect understanding that gay couples were fundamentally
different than straight couples, an understanding that I don’t think exists
today….(Windsor, 106, lines 7-17).
The implicature is clear that +>… in 2013 people understand gay couples. And earlier
remarks regarding “sea change” show Justices’ attitudes and responses to social context.
Considering Windsor further, Justice Kennedy led the federalism discussion in
oral argument, but said nothing during the discussion of “rational basis” or “animus.”
Yet in Kennedy’s written decision for the majority, these two concepts, in addition to
federalism, play a major role in the opinion. Kennedy listened and understood and
wrote about the linkages among constitutional ideas, even if the oral arguments don’t
specifically reflect his involvement in all of them.
5. Conclusion
This paper addressed an objective of assessing implicature in verbal interactions
at SCOTUS. Does implicature:
a. offer a means for more research that might lead to a better understanding of
the U.S.’s highest court?
b. tell us anything about Justices’ intentions? SCOTUS lawyers aim to make their
advocacy appealing and persuasive to the judges. They couch their message
in not just relevant facts, information and precedent, but also in implicatures.
Justices can ask the lawyers questions using implicatures. Understanding this
may allow analysts to highlight what is significant in oral arguments and
justice’s intentions.
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As noted, implicatures can be context-sensitive and assume speakers’ and
listeners’ mastery of relevant legal concepts. The inferences raised in oral argument will
differ from case-to-case because the facts and legal issues differ. This poses the
question of, on a general basis, how useful the concept of implicature might be in
assessing issues of fact-finding, ideology and equal treatment in law. The concept may
be useful for reviewing or finding significant factors in a specific case, for elaborating the
pragmatic content of legal phrases in advocacy. But it is difficult to accept it as a way to
articulate broader clarifications of law.
However, more in-depth analysis of this aspect of oral argument may be feasible.
A promising framework of implicature use might be found in a program underway,
called the Oyez Project (see http/www.oyez.org), which is compiling SCOTUS audio
tapes, back to 1955, into a searchable database. This will allow researchers to consider
SCOTUS transcripts in conjunction with Justices’ expressed tones or attitudes and might
provide a further means to assess whether an oral argument and its spoken – implied
advocacy was influential to a decision, or even if there are general patterns to
implicature use. Implicature study might also lead to a way to help measure the salience
of issues in a specific case.
Nevertheless, a core question about SCOTUS oral argument and its dynamic will
remain, i.e. how influential oral argument is for any SCOTUS Justice? A Justice might be
deeply influenced by some point made or implied at oral argument but without any
reference to that point in the final written decision, without citation or even reference
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to the argument in which the point was made, the linkage between speaking and
listening, between advocacy and decision is indeterminant. Intuitions may suggest
relationships. But ultimately, to correlate SCOTUS decision-making and the processes
leading to it, as well uses of implicature, will require access to Justices’ personal papers,
if not to Justices themselves.
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MONTCLAIR STATE UNIVERSITY
Implicature in Legal
Proceedings as a Pragmatic
Strategy
APLN 605 – LINGUISTICS RESEARCH PROJECT
APPENDIX
(Refer to SCOTUS website for Windsor & Hollingsworth transcripts.)
Roger Cunningham
5/7/2014
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