Most Memorable Footnote? Here's What a Few Lawyers Told Us.

When text implies that a word is used in a secondary sense and clear legislative purpose is at stake, Justice Scalia’s cocktail-party textualism must yield to the Congress of the United States. (Not that we consider usage at a cocktail party a very sound general criterion of statutory meaning: a few nips from the flask might actually explain the solecism of the dissent’s gunner who “revoked” his bird dog; in sober moments he would know that dogs cannot be revoked, even though sentencing orders can be. His mistake, in any case, tells us nothing about how Congress may have used “revoke” in the statute. The gunner’s error is, as Justice Scalia notes, one of current usage. (It is not merely that we do not “revoke” dogs in a “literal” sense today, as Justice Scalia puts it; we do not revoke them at all.) The question before us, however, is one of definition as distinct from usage: when Congress employed the modern usage in providing that a term of supervised release could be revoked, was it employing the most modern meaning of the term “revoke”? Usage can be a guide but not a master in answering a question of meaning like this one. Justice Scalia’s argument from the current unacceptability of the dog and ox examples thus jeopardizes sound statutory construction rather more severely than his sportsman ever threatened a bird.

Scalia in Footnote 4 (of course!):

It is assuredly not current usage, however—I think not even rare current usage—to use “revoke” to connote a literal calling back. (“Since my bird dog was ranging too far afield, I revoked him.”) The Court chastises this example, suggesting that only a tippling hunter would “revoke” his bird dog, as “dogs cannot be revoked, even though sentencing orders can be.” I could not agree more. However, the definition the Court employs (“call back” without the implication of cancellation) envisions that dogs can be revoked–thus illustrating its obscurity. The OED definition on which the Court relies defines “revoke” as “to recall; to call or summon back … an animal or thing.” The first example it gives of this usage is as follows: “These hounds … being acquainted with their masters watchwordes, eyther in revoking or imboldening them to serve the game.” Of course the Court’s “not unheard of” usage is not limited to recalling dogs—oxen can be revoked as well, as the OED’s third example illustrates: “Ye must revoke The patient Oxe unto the Yoke.”

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