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The Ricci Dissent: Five Wrong Answers

Even if you disagree with the Ricci majority, don’t get testy on the grammar front: The dissenters made several errors as well. Here are five:

1. Don’t give me my due

In the following sentence, Ginsburg uses “due to” as a synonym for “because of”—a no-no in most grammar circles:

“In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination ‘because of’ race.”1

She means “employers who reject such criteria because of reasonable doubts.” This error also made me scratch my head: Why miss the chance for a parallel with “‘because of’ race”?

Tip: Either avoid “due to” or use it only when you mean “attributable to”: “My debt is due to overspending.”

2. Unparallel universes

Many constructions require parallel structure: “neither-nor,” “either-or,” “not only-but also,” and “not-but.”

In criticizing Justice Alito here, the dissent is not in tandem with itself:

“A reasonable jury, [Justice Alito] maintains, could have found that respondents were not actually motivated by concern about disparate-impact litigation, but instead sought only ‘to placate a politically important [African-American] constituency.’”2

Motivated and sought are different parts of speech here, so the parallel just isn’t working. I think Ginsburg meant something like this: “respondents were motivated not by a concern about disparate-impact litigation but by a desire ‘to placate a politically important constituency.’”

3. The case of the headless infinitive

Who’s doing the “stating” in the following sentence?

“These stark disparities, the Court acknowledges, sufficed to state a prima facie case under Title VII’s disparate-impact provision.”3

Disparities can’t “state” a case, though the missing-in-action parties could. To avoid this mistake, make sure to attach your infinitives to their rightful subject.

4. Double trouble

Notice an inconsistency between these two sentences:

“Its investigation revealed grave cause for concern about the exam process itself and the City’s failure to consider alternative selection devices.”4

“Hornick’s commonsense observation is mirrored in case law and in Title VII’s administrative guidelines.”5

If you saw the problem, you probably stay awake at night wondering whether to repeat the preposition in compound constructions such as these.

I can relate. Here, for example, I think the dissent might have it backwards.

The best practice is to repeat the preposition if you need to for clarity. So in the first sentence, because “the City’s failure” sounds as though it might be something else the investigation revealed, I believe that Ginsburg should have repeated the preposition: “concern about the exam process itself and about the City’s failure to consider.”

The second sentence is a closer call. The construction is shorter and simpler, so the second “in” was probably optional: “mirrored in case law and Title VII’s administrative guidelines.”

Either way, I’d like to see some guidance from the High Court on when to repeat!

5. Dangling by a thread

For many reasons, we should avoid long introductory clauses such as this one:

Never mentioned by Justice Alito in his attempt to show testing expert Christopher Hornick’s alliance with the City, the [Civil Service Board] solicited Hornick’s testimony at the union’s suggestion, not the City’s.”6

These long introductions often bury the subject and confuse the reader. Here, the problem is even bigger: Ginsburg is dangling her modifier. It’s the soliciting of testimony, not the Civil Service Board, that was “never mentioned.”

And finally, a personal plea: I know emotions get raw in these hot-button cases, but could the Court try to present a united front on the possessive form of Congress and other words that end in –s? Justice Kennedy writes Congress’s, while Justice Ginsburg insists on Congress’. This usage split is hardly new: In a death-penalty case a few years ago, the Court engaged in another stealth grammar battle over the possessive form of Kansas.

_____

  1. Ricci v. DeStefano (07-1428), 557 U.S. ___, 19 (2009).
  2. Id. at 33.
  3. Id. at 5.
  4. Id. at 26.
  5. Id. at 27.
  6. Id. at 35.

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