The signs of two opinions contradictory one to another, namely affirmation and negation of the same thing, is called controversy.
-- Hobbes, Human Nature
Rhetoric is the faculty of observing in any given case the available means of persuasion. -- Aristotle, Rhetoric

We have a ritual in the Lounge on Saturday evenings: just before 6 pm Eastern Time in the US we put aside the crossword puzzles, the knitting, the laptops, the lapdogs, the platters of sweetmeats, the stacks of correspondence, and all other distractions as we draw up our Barcaloungers in a semicircle around the wireless. Here, we sit in rapt attention to C-SPAN radio for the weekly hour-long broadcast of oral arguments heard before the US Supreme Court.

Pretty lame for a Saturday night, you may think, but consider: where else are you going to hear extremely well educated speakers, often at the peak of their careers, laying out arguments in minute detail after weeks or even months of preparation, about matters of great import that may directly affect the lives of millions? Whose sympathies are not engaged by one side or the other in cases that by their nature partake of controversy? Who can resist the suspense of knowing whether the parties to the case will find words to successfully persuade the panel of nine robed figures who represent the pinnacle of thinking about the constitution? Many elements go into the arsenal of a submission to the Supreme Court, but for the hour of oral argument, the only weapons at hand are words. What's not to love about that? For us, it's a chance to hold our finger to the pulse of modern English and see how it's working.

As part of this weekly ritual, we also like to print out the transcripts of the oral arguments (see links below) and follow along. This, we find, focuses our minds on the discussion and helps alert us to interesting uses of language. Analysis of Supreme Court cases can and does fill volumes and we have only about 1,000 words here, but we wanted to share the delights that we find in studying the oral arguments as a linguistic phenomenon, so we'll look at a case that was broadcast recently, in the hope that readers will be encouraged to give the justices and their addressers a whirl.

In January of this year the Court heard a case called Baze v. Rees, which was broadcast very soon after. This case involves a subject many find troublesome to contemplate: the case is a challenge to the practice, widespread in the US, of using a "three-drug cocktail" to administer the death penalty. Three people argue before the court in this case: the petitioner, representing two death-row inmates; the respondent, representing the State of Kentucky; and a Department of Justice lawyer, supporting the respondents as an amicus curiae. In a nutshell, the petitioners argue that this method of execution violates the Eighth Amendment of the US Constitution because it runs the risk of being maladministered, and thus constitutes cruel and unusual punishment. The respondent and the amicus argue against this position. An opinion has not yet been issued in the case.

To examine the arguments from a linguistic perspective, we looked first at the language of the Eighth Amendment. It is the shortest statement in the Bill of Rights and it reads thus:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Armed thus with several wordmaps, we set off on our examination to see where it might lead. The word cruel and its inflections occur only six times in the arguments, and nearly always in the phrase from the amendment. The one exception is in the petitioner's opening statement: "Kentucky's lethal injection procedures pose a danger of cruelly inhumane executions." No synonyms of cruel -- most of which are quite a bit stronger and judgment-laden than cruel -- are used in the arguments.

The word unusual, likewise, does not occur frequently in the arguments and is nearly always a part of the phrase from the Eighth Amendment. The one synonym of unusual that figures in the arguments is extraordinary. It is used by the respondent, who declares that judging the case on the merits of the petitioner's arguments would be an "extraordinary result."

The word punishment and its synonym penalty are each mentioned just over half a dozen times in the document: again, mainly in fixed phrases ("cruel and unusual punishment" and "death penalty").

When we get to the verb inflict and its inflections, (inflict, inflicts, inflicted, inflicting, infliction) usage suddenly ramps right up, to two dozen instances. Inflict or some form of it is used invariably in proximity to two words: penalty (as in "inflict the death penalty" and pain, a word that, along with its relatives (painful, painless, painlessly, nonpainful), make 75 appearances in the arguments. Listening to the arguments and then following up these various word pathways on paper, it became clear that the main subject of this case is this: the infliction of pain and under what circumstances the state may or may not be allowed to do it. Pain or one of its relatives is used by every speaker in the case except Justices Ginsburg and Alito. Pain is characterized by two synonyms, torturous and excruciating, two dozen times in the arguments. Almost as frequent as the mention of pain is use of the word risk: the justices and parties to the case grapple with the risk of inflicting pain, or the risk of human error in carrying out executions, nearly 70 times in the arguments.

The Founding Fathers were -- for better or worse -- completely silent on the subject of pain or the risk of inflicting it. Anything the Supreme Court has said about these subjects up to now in relation to punishment is in the form of dictum.

In this particular case, the suspense at the end of the arguments is just as great as at the beginning. We will be very interested to read the opinions when they are issued in Baze v. Rees to see how the word counts balance out.

For those living beyond the terrestrial or satellite reach of C-SPAN Radio, it is streamed on the Internet:

Transcripts to U.S. Supreme court cases can be found on two websites. Those at the government website have a helpful concordance at the end, enabling you to get a snapshot headcount of which words are used in the arguments:

The Supreme Court Wiki is an excellent site with information and links to all things Supreme:

Click here to read more articles from Language Lounge.

Orin Hargraves is an independent lexicographer and contributor to numerous dictionaries published in the US, the UK, and Europe. He is also the author of Mighty Fine Words and Smashing Expressions (Oxford), the definitive guide to British and American differences, and Slang Rules! (Merriam-Webster), a practical guide for English learners. In addition to writing the Language Lounge column, Orin also writes for the Macmillan Dictionary Blog. Click here to visit his website. Click here to read more articles by Orin Hargraves.

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