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Being human, U.S. Supreme Court justices sometimes make mistakes—including the mispronunciation of words or names during oral argument.

But when it happens, should advocates arguing before them adopt the errant usage, correct it, or just move on?

A new law review article deals with this awkward dilemma, which is hard to quantify because official court transcripts judiciously avoid phonetic spellings.

The author is James Duane, a professor at Regent University School of Law. He caused a stir in 2014 by writing an article about the six different ways justices pronounce the word “certiorari.”

Duane might not have plumbed the specialized topic of Supreme Court pronunciation any further after that widely read article. But it so happened that in late 2015, Duane brought his students to the high court to listen to the oral argument in Lockhart v. United States, a statutory interpretation case involving sentencing.

There, before their eyes and ears, Justice Elena Kagan in a question referred three times to the “antecedent” clause of the statute at issue. But she pronounced the word “an-TESS-a-dent,” mystifying spectators.
















“It sounded like the justice was mentioning some relative named Aunt Tessa Dent,” Duane wrote, carefully omitting Kagan’s name in the article. “The pronunciation was so unconventional that I could not have been the only one in the courtroom who needed to hear the word two or three times before having any idea what the justice was trying to say.”

Duane said the justice’s odd locution forced the lawyer who answered her question into a “terrible tactical choice”—namely, whether she should go along with Kagan’s usage, or in effect correct the justice by using the conventional pronunciation.

Ann O’Connell was the assistant to the solicitor general who was responding to Kagan. Without apparent hesitation, O’Connell went with “ant-a-SEED-ent,” the typical pronunciation of the word.

Duane later told his students he would never have contradicted a judge that way during oral argument, but instead would have adopted the justice’s pronunciation or avoided using the word entirely.

Kagan declined comment on the episode through the Supreme Court’s public information officer.

In a 2015 ABA Journal article on the subject of pronunciation, legal writing guru Bryan Garner cited an instance in which a lawyer mimicked a judicial mispronunciation. In the landmark 1993 Daubert v. Merrell Dow Pharmaceuticals ruling on the admissibility of expert-witness evidence, then-Chief Justice William Rehnquist announced the case by pronouncing Daubert as if it were a French name: “Dow-bair.”

Daubert’s lawyer hastily incorporated part of Rehnquist’s pronunciation, calling his client “Dow-bert” even though his clients pronounced it  “Daw –bert.” The Yale Law School’s Supreme Court pronouncing dictionary verifies that “Daw-bert” is the correct way to say it.

As Duane noted in the article, there is another pronunciational precedent worth mentioning. In 1997, this reporter wrote that during an oral argument, Justice Stephen Breyer repeatedly referred to an amicus curiae brief as an “a-MY-cus” brief, rather than the more conventional “uh-MEE-kuss” formulation, or “AM-uh-kuss,” the pronunciation that years later Dahlia Lithwick would pleasantly use for her Amicus podcast. I added in the story that ”Breyer said ‘a-MY-cus’ so many times that the hapless lawyer before him … adopted the same, clearly incorrect pronunciation just to be accommodating.”

New York Times language columnist William Safire picked up the item and learned from Garner, the legal writing expert, that in fact, “a-MY-cus” was an accepted British pronunciation. Breyer is an Anglophile by marriage.

In a different context, Kagan herself pointed to a third way to deal with mispronunciations: don’t repeat the word at all.  Keying off Duane’s article about the varied pronunciations of “certiorari,” Kagan told a Harvard Law School audience “I sort of plan my sentences never to have to say that word.”

The court itself offers no direct instructions on what to do if a justice mangles a word. But its helpful guide for oral advocates states: “Do not ‘correct’ a Justice unless the matter is essential. In one case a Justice asked a question and mentioned ‘waiver.’ Counsel responded by stating that a ‘forfeiture’ rather than a “waiver” was involved. The distinction was irrelevant, but the comment generated more questions and wasted valuable time.”

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro