Argument recap: Statutory text vs. tradition and experience: May a federal district court tax the cost of translating written documents?

As you probably do not recall (or never knew), in Taniguchi v. Kan Pacific Saipan, the Court is considering whether 28 U.S.C. 1920(6) — which authorizes district courts to tax as costs compensation of interpreters — allows a court to award costs for the translation of foreign-language documents into English. The Ninth Circuit below held that the term interpreters includes people who translate written documents as well as those who do oral translation.

Taniguchi, by contrast, argues that only oral translation costs can be taxed under the standard dictionary definition of interpreter. At oral argument yesterday, the war between pragmatism and textualism started right after Taniguchis counsel, Michael Fried, took to the podium. Justice Sotomayor interrupted just two sentences into Frieds argument. Sure, she acknowledged, the term interpreter most naturally involves oral translation, but it could include translation of written documents, and because courts have been awarding document translation costs for seventy years, why shouldnt that be enough for us? Why should we muck with what works?

At this point, Justice Scalia had already had enough. Frustrated with Frieds responses to Justice Sotomayor, Justice Scalia answered for him: It’s wrong is your answer, right? Yes, Your Honor, Fried wisely replied.

Justice Breyer (no surprise here) brought Fried back to the pragmatic view, noting that a large amount of document translation is needed in cases filed in Puerto Rico. The courts there, he explained, think that it is better to have [document translation] paid by the loser than to have it paid by the winner. So thats been the common practice. Justice Breyer did not explain why a loser-pays rule is better.

My favorite line from Frieds argument came in another exchange with Justice Scalia. Fried pointed out that most dictionaries are on his side, with only Websters Third arguably supporting Kan Pacifics broad definition of interpreter. Not happy with Frieds (very small) concession, Justice Scalia added that Websters Third is not a very good dictionary, noting that it wrongly defines imply to mean infer and infer to mean imply. It does, your Honor, agreed Fried.

The Court heard next from Kan Pacifics counsel, Dan Himmelfarb. After a brief discussion of how the term interpreter can have both a narrow and broad meaning, Justice Scalia pounced: Doesnt the person who translates War and Peace into English, get a trans., not an int., next to her name on the inside front cover? Sure, Justice Scalia, Himmelfarb explained, thats the narrow use of the term — a translator of written documents — but not the one used in Section 1920(6).

As Justice Scalia continued his questioning, Himmelfarb deftly made his basic pitch, that the text of the statute permissibly bears two possible meanings. That being the case, it is a legitimate enterprise for the Court to say which makes sense, which is most likely that Congress would have intended in this particular context. Thats the crux of his argument in a nutshell; it is backed by the practice of most courts to have addressed the issue; and it was perfectly aimed at the pragmatic, it-works-in-the-real-world views already expressed by Justices Sotomayor and Breyer. Well done.

Next up was Justice Alito, who pulled out the venerable American Rule that the parties generally bear their own costs unless Congress specifically says otherwise. In light of that Rule, he asked, why shouldnt we take a narrow view of an interpretive question under Section 1920? Himmelfarb responded that the Rule doesnt matter because Congress has authorized the taxing of costs since the mid-1800s. Thats the same argument that appears in Kan Pacifics brief, and it doesnt move me. Yes, cost-shifting has been around for a good while, but the types of costs that may be shifted remain few to this day—that is, the American Rule is still the governing, background principle.

Justice Kagans contribution may prove the most telling. She wasnt pushing a rigid textualism, but a practical understanding of Congresss handiwork. Even if the American Rule isnt controlling, wasnt Kan Pacific asking for an interpretive rule that errs on the side of breadth rather than narrowness? And when Himmelfarb responded that dictionaries support both sides, she responded simply and cleanly: [T]the dictionaries themselves tell us that one usage is far more common than the other. When she followed up a little while later by asking whether the U.S. Code ever uses interpreter to refer clearly to a written translator, Himmelfarb admitted that he couldnt help her out.

So, how will it all shake out? Justices Sotomayor and Breyer appear to side with Kan Pacific, probably joined by Justice Ginsburg, who, like Justice Breyer, seemed to think that distinguishing between oral and written translation is artificial and ill-suited to actual litigation needs. Justice Kennedy asked a few questions, but didnt really stake out a position.

Taniguchi can count on Justices Scalia, Alito, and (Im pretty sure) Kagan. And though Justice Thomas did not (of course) say anything, his textualist predilections ought to put him in the same camp. The Chief Justice was a bit hard to read, but he expressed concern about shifting large document translation costs to the losing party and suggested that it is more natural and common to speak of someone interpreting oral communication and someone translating written [communication]. So, Im guessing hes voting for Taniguchi as well.

So, Ill stick with my original prediction: Taniguchi wins on the text of the statute, with a smidgen of the American Rule thrown in for good measure.