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Heritage Reporting Company Corrects Justice Sotomayor's Speaking Error
Justice Sotomayor said "23 to 24 months," but she obviously meant "23 to 24 weeks." The error was understandable, but is it proper for the Supreme Court transcript to be corrected?
During oral argument in Dobbs, Justice Sotomayor made an understandable speaking error. Around the 19:00 minute mark, she said "I think that's what both courts below said, that you had no expert say that there is any viability before 23 to 24 months." She obviously meant "23 to 24 weeks."
However, the official Supreme Court transcript, prepared by Heritage Reporting Company, corrected this obvious error on p. 21.
What is the protocol for correcting obvious speaking errors by the Justices, or by parties? I am not a fan of this practice. A court reporter should report what happens in court. Often small slip-ups by counsel or judges creates grounds for appeal. It is not the reporter's job to fix a speak-o (as Jonathan Gruber would say). I've asked Heritage for a comment.
Still, if we take the "viability" line seriously, a child is really not viable at 24 weeks or even 24 months. An infant, left to fend for himself in the wild, would not survive long. He will still depend on the support of others. A child may not be able to be truly self-sustaining until adolescence.
This issue was explored in a classic episode of South Park involving Eric Cartman's mother, who sought a really-late term abortion:
Liane Cartman : [At the Unplanned Parenthood Clinic] I want to have… an abortion.
Nurse Goodly : Oh, well, we can do that. This must be a very difficult time for you, Mrs…
Liane Cartman : Cartman. Yes, it's such a hard decision but I just don't feel like I can raise a child in this screwy world.
Nurse Goodly : Yes, Ms. Cartman, if you don't feel fit to raise a child, an abortion probably is the answer. Do you know the actual time of conception?
Liane Cartman : About 8 years ago.
Nurse Goodly : [thinking] I see… So the fetus is…
Liane Cartman : 8 years old.
Nurse Goodly : Ms. Cartman, 8 years old is a little late to be considering abortion.
Liane Cartman : Really?
Nurse Goodly : Yes, this is what we would refer to as the 40th trimester.
Liane Cartman : But I just don't think I'm a fit mother.
Nurse Goodly : But we prefer to abort babies a little earlier on. In fact, there's a law against abortions after the 2nd trimester.
Liane Cartman : Well, I think you need to keep your laws off of my body!
Nurse Goodly : Hummm… I'm afraid I can't help you, Ms. Cartman. If you want to change the law, you'll have to speak with your congressman.
Liane Cartman : Well, that's exactly what I intend to do! Good day.
I thought of this episode during colloquies with Justice Barrett yesterday.
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If this post is ever republished, should whoever does so correct “A court reporter should reporter what happens in court.” ? 🙂
Glad to see you caught your error, Josh!
Did Prof. Blackman revise his work without acknowledging the revision?
So the supreme court joins the other branches in making the official record whatever the politicians want it to be.
Unified at last.
Indeed. At this point the Congressional Record is basically useless for determining what actually took place in Congress.
Heritage was trying to be helpful, I guess, with the edit. But I worry that editing privilege can be badly abused by others who have less helpful aims.
At the very least, any such correction should be noted, with the original shown as well.
Agreed. There are some blog posters that do this as well.
“Often small slip-ups by counsel or judges creates grounds for appeal.”
(a) There isn’t going to be an appeal on this one, at least not to another court.
(b) If the spoken words of SC justices are going to be treated later as having some interpretive value then correcting them (with the actual or implied approval of the speaker) is a valid thing to do. If they aren’t going to be treated that way, then having a perfectly accurate transcript isn’t important anyway.
Pint (a) is obviously correct. Point (b) depends on the goodness of human nature, which I think is naive. As one commenter noted above, perhaps the transcript could reflect what actually happened with a notation of the obvious intent. That may be subject to abuse, but the potential for abuse would be minimal. The latter course would also have the virtue of allowing the reader to see what actually happened and use their judgment on the suitability of the noted correction.
Simply changing the record without comment seems to be the obvious worst course.
The question isn’t whether the transcript should be corrected, it’s whether it should be corrected without any note.
It’s a matter of transparency. The power to correct mistakes is the power to mistake corrects. To sneak in changes to the law.
We already have Congress ‘fixing’ supposed mistakes after votes are held, so that the version of a bill that becomes law sometimes isn’t the version that was actually voted on. Sometimes these fixes are of genuine errors. Sometimes they are substantial alterations.
Fair enough, I don’t really disagree. Of course it would have been better to do it the way you suggest.
Guess my real motivation was some sympathy for Sotomayor based on two personal experiences – getting deposed and then seeing the transcript of what I’d said, and then COVID forcing me to go online where all my lectures are recorded/transcribed. It’s embarrassing to see how incoherent, error-prone, and sometimes inappropriate my spoken words appear when reduced to text.
One of the nastier ways you can embarrass somebody is to refrain from cleaning up a transcript, as is normally done. Leave in all the “um”s and such, and they sound like a real idiot, because we’re used to filtering that sort of thing out while listening, and used to cleaned up text.
But changing numbers or units shouldn’t go unremarked.
ducksalad,
Unless your lectures are fully transcribed by a human listener with a recorder oral version, you can expect error rates of as high as thirty percent depending on any accent or speaking pattern short of what we used to call NBC English. If you have standard American English speech patterns then 10% would be par for the course.
The human listener option is quite expensive, unless your institution insists that you do it for yourself.
A friend of mine made a nice living transcribing audio recordings of medical notes. Didn’t require her to live in any particular place, which she appreciated, she just needed minimal equipment and an excellent vocabulary.
Computer transcription is a bad joke unless the vocabulary is very limited and you have a midwestern accent.
You are generally afforded an opportunity to review the transcript and then you can provide corrections to the record.
They need an added “meant weeks not months”, with a scrawled SS next to it, as with a messed up check or CC receipt.
” If the spoken words of SC justices are going to be treated later as having some interpretive value then correcting them (with the actual or implied approval of the speaker) is a valid thing to do. If they aren’t going to be treated that way, then having a perfectly accurate transcript isn’t important anyway.”
Well, the issue with a transcript is that you’re providing a record of what was said in court, without really knowing why your reader wants to know what was said in court.
So the preparer of the transcript can’t know to what extent is matters that she corrected the error, and should just leave it the way it is.
Honestly, the should probably handle it however the handled Scalia’s error in his Homer City dissent. Maybe a different Volokh blogger can weigh in on that: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/29/homer-nods-in-epa-v-eme-homer-city-generation/
Not really comparable. A transcript is supposed to be a record of what was said in court. A written opinion is whatever the court says the final version is.
This is what [brackets] were made for. Lawyers compulsively bracket even changes from upper to lower case for grammatical reasons in quotations. Certainly a change in word deserves a pair.
Makes sense to me
Fehlleistung [sic] on Occasion of Oral Arguments
Such errors should be faithfully transcribed and denoted with [sic]. This could be done in a different color, with a legend explaining that any mark-up in that color was done by the court reporter. Justices should be permitted to “correct” themselves through some sort of addendum/errata sheet, without altering the transcription itself, but the affected word, phrase, or passage could also be flagged somehow (like a different color or font or italics).
ALSO: Suprised no one is bringing up the concept of “Freudian Slip”, i.e. making an error in speech that is actually revealing of the subconscious/unarticulated thoughts and covert emotions.
https://en.wikipedia.org/wiki/Freudian_slip (also covers loose use of concept and alternative explanations for oral errors).
Interestingly, they did not correct her reversal of brain dead people to “dead brain people”.
On the grammar issue, shouldn’t it be hyphenated in either case, due to compound-adjective use of the two words irrespective of which goes first? — Unlike the substitution of a different word with very different but material meaning, this would be a question entirely within the purview of the transcriber/reporter.
MENTAL MANNA FOR THE MASSES ?
On the substance, brain death is irreversable and typically not induced with premeditation by medical professionals in the ordinary course of business.
https://www.kidney.org/atoz/content/braindeath
So, would invocation of a purported analogy of termination of life support to a brain-dead person with nontherapeutic abortion meet the definition of gaslighting? Or perhaps provide an education-enhancing example (if not epitome) of erudite-reasoning-plus for consumption by the plebs?
Or something else entirely … to preempt false-dichotomy howls.
No the transcript should reflect what was said, duh.
I mean what could go wrong with just changing what was said? I can’t think of any possible abuse of this.
Suppose one of the advocates misunderstood because of miss statement?
Probably not in this case but it could in other circumstances.
Who is this “miss statement”, and what does she have to do with the issue?
Why Justice Sotomayor of course.
Here is an example of or relevance of transcription error (albeit reporter’s error):
Under Texas law, the movant for a temporary injunction needs to show “imminent” harm, among other elements. Court reporter made it “eminent” on all 3 occasions the trial court judge used the term.
EMINENTLY SHPEEKING [SIC], NOT IMMINENT
THE COURT: Okay. So the order that I was looking at does not have the necessary findings […] Okay. So the new — the order now in front of me reflects the following findings: One, the Court finds that plaintiffs will be eminently and irreparably harmed in the interim absent a temporary injunction. Plaintiffs reasonably fear that defendants and those acting in concert with them will file claims against them under SB 8.
***
THE COURT: I have to have some information to make that determination, so if there is eminent — an eminent threat of harm to the plaintiffs, then it has to come out through testimony, and we’ll do what we need to do to protect the identity and addresses of those witnesses.
***
THE COURT: Okay. That would be helpful to me. We — I have to have a finding that there is a likelihood to prevail. There has to be a finding that there is eminent harm, and as I mentioned previously, I have to have a bond and I have to have a trial date.
SOURCE: Sept 13, 2021 Temporary Injunction Hearing in Planned Parenthood et al v. Texas Right to Life et al before the Honorable Karin Crump; transcript attached to Petition for Writ of Mandamus in Tex. 21-0844, styled IN RE PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES et al. filed 9/29/2021 (438 pages) [ PDF/8.39 MB ]
https://search.txcourts.gov/Case.aspx?cn=21-0844&coa=cossup
HARMFUL SEMANTIC CONFUSION IN CRIMINAL CASE CONTEXT
The matter of imminent harm also comes up in a criminal cases. See TEXAS PENAL CODE § 9.22.
Sec. 9.22. NECESSITY. Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
CASE IN POINT: Egger v. State, 817 S.W.2d 183 (Tex.App.—El Paso 1991, pet. ref’d)(central issues of material fact of appellant abortion protester’s necessity defense was that he reasonably believed (1) that obstructing the passageway and (2) that remaining in the building was “immediately necessary to avoid IMMINENT harm.”)(emphasis added); also see Cyr v. State, 887 S.W.2d 203 (Tex.App.— Dallas 1994, no pet.) (necessity defense not established where evidence was insufficient to establish that any unlawful third-trimester abortions were IMMINENT on the day of Cyr’s arrest for trespass).
not as stupid as Sleepy’s “Tuskegee Airmen” comment…
…Is this some deep cut from this *summer?*
Congrats on your partisan hipster cred, I guess.