Flattery in a Faux Pas at the Supreme Court

Tony Mauro

Legal Times

It happened again at the Supreme Court. During oral arguments Monday morning in the original jurisdiction case of Kansas v. Colorado (free registration), Justice David Souter asked a question of Colorado Attorney General John Suthers. Suthers, who was presenting his side in the dispute over expert witness fees in the case, paused and answered, "Justice Ginsburg ..." Amid nervous laughter, Souter said with a smile, "I'm greatly flattered," and as Suthers apologized, Souter added, "You're not the first to have done that." (See page 32 of the argument transcript (pdf).)

Indeed, Suthers was not. At least once before, during the April 24, 2007, argument in Dayton v. Hanson, (see pages 26-27 of the transcript [pdf]) a lawyer addressed Souter as Ginsburg, and then too, Souter said he was flattered by the mistake. It's been documented that some of the best high court advocates got Ginsburg mixed up with Justice Sandra Day O'Connor when she was on the Court [Note: See "Malaprops" section of this article], and more recently some have called Justice Antonin Scalia "Justice [Samuel] Alito" and vice versa. The only explanation for the Souter-Ginsburg mix-up appears to be that they sit next to each other on the bench.

In speeches since the 2007 episode, Ginsburg has good-naturedly mentioned to audiences that she'd been confused with Souter, by way of also noting that she looks forward to the day when there is another female justice on the Court for lawyers to get her mixed up with.

First reported in The BLT: The Blog of Legal Times