Transitive "blink"
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Reader Scott Mauldin asks:
I am curious about a unique usage I read in SCOTUS Justice Ketanji Jackson's dissent to the recent cases on affirmative action. She says “This contention blinks both history and reality in ways too numerous to count.” To me, the usage of "blink" as an transitive verb to mean [I assume] something like "ignore" was completely novel. To see what to me is a nonstandard usage show up in a Supreme Court dissent was strange. Is this common usage in some communities, and if so would you or your readers happen to have information on that usage?
If the use of "blink" in this sense ("ignore") is nonstandard, would it be permissible or acceptable for a SCOTUS Justice to employ it in her dissent?
—–
For the complete text of Justice Jackson's dissent, see here.
Selected readings
- "Whose standard?" (8/28/08)
- "Contractual Grammar" (2/4/09)
- "Innovation, rules, and regulation" (12/28/12)
Michael P said,
July 4, 2023 @ 6:37 am
Blinking one's eyes is a very standard transitive use of the verb, but I do not recall previously seeing a use like the dissent's. Merriam-Webster (https://www.merriam-webster.com/dictionary/blink) gives "to deny recognition to" as a meaning for transitive "blink", but without examples or citations to indicate currency of use. Perhaps someone with an OED subscription will check it.
Simon K said,
July 4, 2023 @ 6:53 am
OED has transitive 'blink', meaning "To shut the eyes to; to evade, shirk, pass by, ignore: originally a sporting phrase."
Citations include Henry Fielding, Lord Byron and Thomas de Quincey. Nothing more recent than George Eliot in 1859 – "It was no use blinking the fact" – but the entry hasn't been fully updated yet.
So an unusual but not unheard of usage
pas said,
July 4, 2023 @ 6:56 am
“blinks reality” (as in “blinking at reality” in disbelief) appear to be commonly used phrases among legal advocates https://duckduckgo.com/?va=v&t=ha&q=blinks+reality+site%3Asupremecourt.gov&ia=web
Linda said,
July 4, 2023 @ 6:59 am
The closest I could find in the OED entry for Blink
. transitive. To shut the eyes to; to evade, shirk, pass by, ignore: originally a sporting phrase.
1742 H. Fielding Joseph Andrews I. i. xv. 108 There's a Bitch..she never blinked a Bird in her Life. View more context for this quotation
1811 Ld. Byron Hints from Horace 555 Dogs blink their coveys.
1823 T. De Quincey Lett. Young Man in London Mag. Jan. 89/2 Children, however, are incidents that will occur in this life; and must not be blinked.
1859 ‘G. Eliot’ Adam Bede I. i. xii. 247 It was no use blinking the fact.
Taylor, Philip said,
July 4, 2023 @ 7:00 am
GH said,
July 4, 2023 @ 7:52 am
Wiktionary also has a sense that seems to fit, but again without quotations:
Victor Mair said,
July 4, 2023 @ 8:09 am
It is remarkably reassuring that, within one minute of each other, Linda and Philip Taylor came up with exactly the same citations from OED.
The quotation from Henry Fielding's Joseph Armstrong is especially eye-catching (if I may): "There's a Bitch..she never blinked a Bird in her Life." Compare that with the next quotation from Lord Byron: "Dogs blink their coveys."
If you've ever watched a pointer (sometimes called "bird dogs") lock their line of sight on game for their hunter companion, you will have a visceral sense of the intense visual concentration that is the opposite of blinking.
J.W. Brewer said,
July 4, 2023 @ 9:37 am
The uses uncovered by pas are fascinating, because that's definitely the use in question, being used in formal legal briefing by high-profile lawyers in high-profile cases seeking the attention of the Supreme Court, but … I myself write and read legal briefs for a living (generally not ones being filed in the Supreme Court) and I don't specifically recall ever seeing it, and my immediate untutored reaction to it is that it looks like an error rather than an idiom. On that basis I would not use it in a brief being filed in an ordinary case at a less exalted layer of the American legal system because I would not have sufficient confidence that my intended readership would understand it. It's as if the legal jargon of the specialist Supreme Court bar has diverged dialectically from regular American legal jargon.
Paul Frank said,
July 4, 2023 @ 9:53 am
The collocation "blinks reality" gets 332 Google Scholar case law hits:
https://scholar.google.com/scholar?hl=en&as_sdt=2006&q=%22blinks+reality%22&btnG=
Gene Hill said,
July 4, 2023 @ 12:23 pm
All I can offer is that while reading her descent I grew drowsy and Winken Blinken and Nod came to mind
Jerry Packard said,
July 4, 2023 @ 12:41 pm
Isn’t it just a typo for ‘link’?
Viseguy said,
July 4, 2023 @ 12:44 pm
Transitive "cabin", in OED sense 3 ("To shut up or confine within narrow and hampering bounds"), seems to be another favorite among practitioners in the higher federal courts, though considerably more common than transitive "blink". For what it's worth, I've never run across that use of "blink" in my 48 years of doing law.
Bloix said,
July 4, 2023 @ 1:58 pm
Another blogger was amused by it nine years ago.
https://joshblackman.com/blog/2014/06/30/scotus-blinks/
Bloix said,
July 4, 2023 @ 2:13 pm
From 1832:
The momentous question at issue "is not to be blinked," according to his own expression, and it shall not be blinked.
-Robert Haldane, Review of the Rev. John Scott's Apology for the Proceedings of the Committee of the British and Foreign Bible Society, at 4 (Edinburgh 1832).
https://www.google.com/books/edition/Review_of_the_Rev_John_Scott_s_Apology_f/eBW9m2_IiLcC?hl=en&gbpv=1&dq=blinked&pg=PA4&printsec=frontcover
What's interesting about this quotation is that Haldane, who is quoting the Rev. John Scott, seems to find the usage as odd as most of us modern readers do.
Carl said,
July 4, 2023 @ 2:25 pm
Jerry Packard:
No.
J.W. Brewer said,
July 4, 2023 @ 3:00 pm
It's sort of interesting how this recent SCOTUS-adjacent usage seems consistent with an early-mid-19th-century British usage without (thus far in this thread) some sort of continuous usage of this sense by some relevant subset of Anglophones in between. My reaction to Bloix's link to Josh Blackman's 2014 post is that Prof. Blackman is a legal academic who can and does spend more of his time paying attention to the linguistic quirks of SCOTUS-specific discourse than a working-yeoman lawyer like me who instead has to scour the inelegant prior pronouncements of the State of New York's intermediate appellate courts for relevant holdings and language. So if it struck Prof. Blackman less than a decade ago as novel and interesting, that's consistent with my prior point that it still has not yet spread into the mainstream of US legal-jargon discourse but remains an elite-niche usage.
J.W. Brewer said,
July 4, 2023 @ 3:29 pm
There's a separate point, which is about who is the assumed/intended audience for Supreme Court opinions, both majority opinions and otherwise. For opinions on recondite and technical matters of law (which still make up the bulk of the Court's work) it's fine to write in a jargon-heavy register that will be comprehensible to (but only to) lower-court judges and the subsets of the practicing bar to whom the particular recondite/technical point will be practically relevant. For opinions in cases which are politically-charged and thus (for good or ill) more salient to a wider group of readers, it would IMHO be good practice for the Justices who are writing to eschew insider-jargon usages that will not be easily understood by a wider readership, who (rightly or wrongly) will have strong opinions about the outcome of the case.
So (not that she or any of her colleagues asks for my input!) I would have advised Justice Jackson to avoid this particular locution in this particular opinion in this particular case, on the basis that it ought to be worded for a broader and less jargon-savvy assumed readership. But I am reasonably confident that all eight of her colleagues have probably committed the same sort of infelicity (viz. use of insider jargon in an opinion unusually likely to be read by non-insiders) over the course of their SCOTUS tenures.
Cirk R. Bejnar said,
July 4, 2023 @ 4:35 pm
The OED entry likely dates to the original publication of that part of the alphabet in 1888, so the lack of recent citations probably reflects a lack of updates to the entry rather than a complete lack of usage.
Taylor, Philip said,
July 4, 2023 @ 4:42 pm
Jerry Packard, Carl — I am inclined to think that Jerry may well be correct, evidence to the contrary not withstanding. The original sentence makes perfect sense if "blink" is replaced by "link" —
Taylor, Philip said,
July 4, 2023 @ 4:44 pm
Cirk — what the OED actually says, in terms of chronology, is as follows :
Thus modifications were made as recently as March 2023, even though the entry "has not yet been fully updated".
Cirk R. Bejnar said,
July 4, 2023 @ 5:19 pm
Philip, thanks for the citation. My check of an online copy of the first edition OED shows that the relevant sense and it's citations are original. Updates have likely been made other parts of the entry.
Joshua K. said,
July 4, 2023 @ 5:32 pm
Justice Jackson clearly did not mean "links" in this context. From her opinion:
She would not have said that an argument she disagreed with "links history and reality."
In fact, the majority opinion by Justice Roberts used the word "blinks" the same way:
Note that "links" could not even fit into that sentence in place of "blinks" because there would be nothing mentioned for "reality" to link to.
Even if the Supreme Court justices agree on nothing else, they agree that the word "blink" can be used to mean "ignore" in reference to reality.
Michael Sullivan said,
July 4, 2023 @ 8:07 pm
Supreme Court, and to a lesser extent Court of Appeals opinion writers have a bunch of slightly odd usages that get picked up by clerks and former clerks, as well as advocates who maybe want to appear as thinking like a given justice. For example, at least three justices in the last few decades have described routine, obvious points as "run of the mine" instead of the more common "run of the mill." Some judges have called for a "volte face" instead of "about face." Using a judge's or justice's favored phrase is a way to obsequiously claim attention and favor.
Viseguy said,
July 4, 2023 @ 8:51 pm
@Joshua K.: "Even if the Supreme Court justices agree on nothing else, they agree that the word "blink" can be used to mean 'ignore' in reference to reality."
I wonder who "blinked" first, Roberts or Jackson? (Not that there's necessarily any (b)linkage between the two.) Which leads to (but emphatically does not beg) the question whether the internal deliberations of the U.S. Supreme Court's justices ever become open and available to public examination? Does an exception in the Freedom of Information Act forever shield them from disclosure by dint of, say, the hallowed doctrine of stare decisis?
Viseguy said,
July 4, 2023 @ 9:08 pm
Sorry, I meant to say "… the hollowed</em doctrine …". (There really ought to be a way to edit comments — not.)
Viseguy said,
July 4, 2023 @ 9:10 pm
No, no. There really ought to be a way….
Philip Anderson said,
July 5, 2023 @ 5:27 am
@Michael Sullivan
"run of the mine" sounds like an eggcorn to me.
“volte face” doesn’t seem any more remarkable than “U-turn”, or “about turn” to me, although “about face” sounds a little odder.
J.W. Brewer said,
July 5, 2023 @ 9:35 am
@Viseguy, in recent years, the way internal deliberations have leaked out into public view has generally been via eventual posthumous release of the papers (including confidential communications to/from colleagues) of deceased Justices, most recently with the release of (not sure about some v. all?) of Justice Stevens' papers along those lines, 13 years after his death. https://apnews.com/article/supreme-court-justice-john-paul-stevens-papers-256540500178c8c7bfd57a3f26d8b7d7
There does not appear to be a uniform approach to how this is handled, so perhaps it is controlled by the judgment of those in charge of each defunct Justice's estate. Suggestions for a uniform rule of "wait X years" or "wait however many years it ends up taking until there has been entire turnover and all the Justices who served with Justice Y are dead or retired" have apparently not been adopted or not considered binding by all concerned.
J.W. Brewer said,
July 5, 2023 @ 9:42 am
To clarify prior post: Stevens' papers were left to the LIbrary of Congress, which recently made a second tranche of them available to the public, but the L/C was bound as to what they could make public when by whatever instructions/conditions were imposed by Stevens or the representatives of his estate at the time the papers were donated, and those seem to vary case-to-case as different justices (or their estates) make such donations. The judiciary as an institution does not appear to have (or a least to exercise) the practical ability to impose uniformity or override what others might think insufficiently rigorous limitations on how much delay is required before public access.
J.W. Brewer said,
July 5, 2023 @ 10:44 am
FWIW the earliest usage in a U.S. Supreme Court opinion of "blinks reality" that I can turn up seems to be in Chief Justice Warren's dissent in Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 132 (1961).
J.W. Brewer said,
July 5, 2023 @ 11:02 am
To add some empirical data to my impressionistic claim that this phrase, however common among Supreme Court justices, has not spread throughout U.S. legal-jargon culture, I did a search that suggests that "blinks reality" has to date been used only six times in published opinions written by jurists in the New York state court system. Five of those uses were in between 1972 and 1994, with only one being more recent. And indeed, that sole 21st-century usage (in the dissent in a 2017 Court of Appeals case styled People v. Vining, 28 N.Y.3d 686, 696) does not even reflect Judge Rivera's own choice of phrasing, but is contained within a direct quotation from a brief filed by the District Attorney's office (I think from context the Manhattan one), which had asserted that "it blinks reality to assume that defendants are not informed by their attorneys" that phone calls they may make and receive while locked up on Rikers Island may be listened to by the jail authorities who in turn may share their content with prosecutors.
Rodger C said,
July 5, 2023 @ 1:57 pm
“about face” sounds a little odder
I take it you were never in the US military.
Philip Anderson said,
July 5, 2023 @ 3:55 pm
@Rodger C
Correct. Not even the British Armed Forces, where the command is “about turn”.
Viseguy said,
July 5, 2023 @ 7:01 pm
@J.W. Brewer: Interesting, thanks.
LawClerk said,
July 6, 2023 @ 12:08 pm
I am a career law clerk in the federal system. "Blinks reality" is a familiar phrase that I've used many times in memos to my boss. I would have assumed that it was a common phrase in general usage, but if readers of this blog are unfamiliar with it, I probably picked it up through my legal work. A quick search on Westlaw of "blink reality" (which captures uses of blink and blinks) shows 314 uses by federal courts and 102 by state courts. "Blink(s) at reality" was used 61 times by federal courts and 44 times by state courts.
J.W. Brewer said,
July 7, 2023 @ 8:56 am
I find LawClerk's stats interesting and continue to be puzzled/intrigued by what sort of dialect difference (where are the isoglosses and what causes them?*) would make this turn of phrase so much more prevalent in federal court decisions than state court decisions. Although of course one tricky part is we don't (or at least I don't) have appropriate denominators to know how to compare the 314/61 to the 102/44 — the state courts collectively make a lot more decisions but a significantly higher percentage of the state-court decisions never make it into the Westlaw database and I can't immediately find out what the federal:state ratio is for decisions in the database.
But maybe the difference (internal on both sides) between the 314:102 ratio and the 61:44 ratio is meaningful, since the variant including "at" (proportionately more common in the state court decisions) is pretty transparent and compositional even if it seems a bit of an odd image, whereas it's the version without at that's baffling at first glance if you don't already know it.
*There are certain sorts of issues (especially but not only technical/procedural ones) that come up ubiquitously in federal court but very rarely in state court, so one would expect a skew in the use of phrases associated with those issues. But "blinks reality" ain't one of those.
Mark S. said,
July 17, 2023 @ 8:18 pm
Language Log alum John McWhorter took this up recently elsewhere: What Justice Ketanji Brown Jackson Meant When She Said ‘Blink’.