Babb v. Wilkie Shows the Grammar of Free Self-Government

Adam Carrington

Remember the grammar lessons in your middle- and high-school English classes? The diagramming of sentences that categorized words and phrases, then defined the relationship between its parts? Many of us remember little more about them than the frustration and possibly the consequent, painful grade.

In so forgetting, we are not just less educated; we are less free. One can see why in last week’s Supreme Court decision of Babb v. Wilkie. The case concerned interpretation of the Age Discrimination in Employment Act of 1967. Noris Babb, who worked for the Department of Veteran Affairs, sued under this law, claiming that several actions taken or not taken by her superiors included discrimination against her based on her age (she was born in 1960).

The relevant text of the statute said that “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.”

Babb argued that the text protected against any action involving age discrimination. The federal government responded that the law only offered relief if Babb could show “but-for” causation, meaning she had to prove that age considerations determined the VA’s decisions, not just “played a part” in them.

In an 8-1 vote, Justice Alito’s majority opinion ruled in favor of Babb. His reasoning read like an English class, consisting almost entirely of parsing “matters of syntax” in the statute. “What really matters for present purposes,” he wrote, “is the way these terms [in the statute] relate to each other.”

The main issue concerned the relationship the phrase “All personnel actions” had to the rest of the quoted text. What did the law in general require of such actions? Alito argued that if the wording “based on age” modified this phrase, the government would win. The government would win because “based on age” meant age formed the determining, “but-for” cause for what it modified. However, Alito denied its relationship to “all personnel actions.” Instead, he categorized “based on age” as an “adjectival phrase” modifying “discrimination.” This relationship did create a kind of “but-for cause” in the statute, Alito admitted. However, here it only meant that age comprised the kind of discrimination banned.

Alito then claimed the real phrase determining “All personnel actions” was “free from any discrimination.” He categorized this portion as “an adverbial phrase” that modified a verb: “made.” “[F]ree from any discrimination” acted in the sentence to “describe[] how a personnel action must be ‘made.’” Therefore, personnel decisions must be “made,” absent any distinction based on age. This parsing pointed in Babb’s favor. Whether age discrimination determined the outcome did not matter for whether an employer violated the law. Any “taint” of differential treatment in any kind of “personnel actions” contradicted the statute.

Throughout Alito’s parsing, you may experience flashbacks to the confusion and frustration of your English classes. But the capacity to follow along with the majority’s reasoning means much more than knowing good syntax and grammar.

We live in a country dedicated to the rule of law. Laws — written commands — help fight off the twin evils of anarchy and of tyranny. They fight off anarchy because we as citizens can know the rules and can call on the government’s protection through them. Laws fight off tyranny by holding governmental action only to enforcing these written commands, not adding any pernicious whim of a policeman or president.

Yet the law’s capacity to rule, and thus to protect us, requires we understand it. This necessity creates an obligation on the part of those composing a law. It must communicate clearly for us and for the government to obey it truly. At the same time, we citizens must possess the capacity to understand these written commands. Both the perspective of composition and comprehension demand knowing how words and phrases work. And we only do so if we acquire and apply rules of grammar to create and to discern statutory meaning.

In a government “of the people, by the people, for the people,” this need becomes all the more acute. For the written rules commanding our lives and government’s reach stem from our exercise of self-government. To not know how to read them is not just a failure of language for Americans. It is a failure of our popular form of rule.

English grammar may be hard for many of us. But so is self-government through the rule of law. Dust off those grammar books and start diagramming sentences. Your liberty may depend on it.

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