Yet another sign of a divided U.S. Supreme Court: The justices cannot even agree on how to pronounce the word “certiorari.”
A new and somewhat whimsical research article reveals that justices are “profoundly divided” into at least six camps on the proper way to say that Latin word.
“There was only one point of unanimous agreement,” legal scholar James Duane wrote in the latest edition of The Green Bag legal journal. “They all pronounce the beginning of the word “ser,” presumably because of its obvious resemblance to certain.”
Duane, a professor at Regent University School of Law and a lawyer for 25 years, said in an interview that he launched the research project “so I could make sure I was pronouncing the word right for my students.” He looked to the Supreme Court for guidance, he said, because “I assumed there was a uniform way of pronouncing it.”
Far from it. Anyone who attends oral arguments and pays attention has probably noticed a lack of unanimity on the pronunciation of the word. And it comes up often. Justices utter the word “certiorari” as often as New York police say “perpetrator.” Certiorari describes the writ or petition that parties submit to win the court’s attention, so it is an element in almost every case the justices discuss while on the bench.
Duane combed oral argument transcripts to find when the word was used, then listened to the matching argument audio on Oyez. He also listened to opinion announcements in which some justices start off with the traditional formulation, “This case comes to us on writ of certiorari to the [whichever] circuit.” It did not take long for Duane to discover the linguistic divergence.
Justice Clarence Thomas has probably the most unique take, pronouncing the first two syllables as “sertzee.” Several justices pronounce the last syllable as “eye,” while others say “ee.” Justice Anthony Kennedy, Duane discovered, is the only justice to pronounce it “ser-shee-or-ARR-eye,” so that the end rhymes with “far cry.” Befitting her upbringing in fast-talking New York, Justice Sonia Sotomayor drops an entire syllable, pronouncing the word as “ser-shee-ARR-ee.”
Retired Justice John Paul Stevens led a faction that pronounces the word to rhyme with “Ferrari,” as in “ser-shee-or-RAHR-ee.” Another group led by Chief Justice John Roberts Jr. has adopted “ser-shee-or-RARE-eye,” rhyming with “fair guy.”
Justices Ruth Bader Ginsburg and Elena Kagan almost never use the word, preferring the abbreviated term “cert,” though Ginsburg often uses “review” instead, probably for benefit of the lay audience in the courtroom.
The diversity of usage left Duane unable to recommend the best way for oral advocates to pronounce the word. No matter which pronunciation they pick, he said, a majority of justices will say to themselves, “That is not how I would have said it.” Avoiding the term altogether might be best, or using “cert” instead—though that is not a perfect solution. Adopting the “cert” usage might come across as too informal or pretending to be a court insider.
At least one justice has said that proper pronunciation matters. In a 2009 speech, Justice Antonin Scalia said that when a judge hears an advocate mispronounce a word, he or she might be “inclined to think this person is not the sharpest pencil in the box.”
A similar though less fractured split among justices exists over the pronunciation of another Latin word: “amicus,” as in “amicus curiae” or “friend of the court.” Some emphasize the first syllable (AM-a-cus,) others stress the second as in “a-ME-cus,” while Justice Stephen Breyer is alone in pronouncing it “a-MY-cus,” a Britishism.
In one 1997 oral argument, Breyer said it that unusual way so often that the lawyer before him adopted the pronunciation, to be on the safe side. As New York Times columnist William Safire put it at the time, “In the long history of that honorable court, it is unlikely that any lawyer has corrected a justice’s pronunciation.”