I was pleased to see that far more respectable personage Prof. Eugene Volokh also noticed and commented yesterday on Justice Kagan’s use of “way” as an adverb in the Omnicare case. (I mentioned it at the end of this post.) It was the first use of the phrase “way overstates” in any published U.S. opinion, but not (as I speculated) the first use of “way” as an adverb by a Supreme Court justice.

That’s because, as reader Steve Kass pointed out to me, Justice Kagan herself used it that way at least three times in 2013, all in the same sentence:

Amex has put Italian Colors to this choice: Spend way, way, way more money than your claim is worth, or relinquish your Sherman Act rights.

American Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2316 (2014) (Kagan, J. dissenting; emphasis added).

That’s a good find, because as Prof. Volokh also pointed out, this sort of thing is not easy to search for. Steve found it by guessing (correctly) that if it had been used, it was most likely to be in the phrases “way more” or “way less,” and then searching for those. It may have been used in other ways, too, but this search did yield an unexpected bounty.

This is not, however, the first use of “way” as an adverb in a judicial opinion. Volokh Conspiracy readers also found an example from way back in 1998. Grider v. Abramson, 994 F. Supp. 840, (W.D. Ky. 1998) (Heyburn, J.) (“One may fairly ask, does not complete absence of trouble at the rallies suggest that Defendants way overreacted.”).

But it also appeared six years before that in Noble v. Bradford Marine, which as it happens is already in the Case Law Hall of Fame for other very good reasons. See 789 F. Supp. 395, 397 (1992) (finding, not long after the movie Wayne’s World was released, that the defendant’s attempted removal to federal court was “most bogus” and “‘way’ improvident”).

Prof. Volokh thinks that might be in a slightly different category, but I think reasonable people could disagree about that.

By the way, the OED confirms the use of “way” as an adverb (though only in the U.S.) and has examples going way back to 1941:

It says that this is an aphetic form of “away,” as in “Turkeys are away up in price” (1903). It seemed bogus to define it by using another word I had to look up, but now that I have, I know “aphesis” is “the gradual and unintentional loss of a short unaccented vowel at the beginning of a word.”

I also know that I have to bill at least a few hours today (there’s a word for that, too), so that seems like enough archaeology for now.