My colleague Jordan Rubin and I were doing what all good Supreme Court nerds were doing in the late afternoon hours of the Supreme Court’s opening day: poring through the transcripts from the day’s two oral arguments.
Then... Jordan chuckled.
Every now and again one of the justices cracks a joke—sometimes unintentionally—that elicits laughter from the courtroom. But it’s seldom ever a gut-busting one that’d be funny enough to make someone laugh out loud again upon reading it later. So what was Jordan finding so funny?
He pointed me to a line from Justice Neil Gorsuch in the transcript from Sessions v. Dimaya, the second case argued that day.
“What do you say to the critique that the void-for-vagueness doctrine, as a racial issue matter, is just substantive due process and suspect on that basis and therefore should be narrowly construed?”
Now, there’s been some critique of Justice Gorsuch interjecting controversial statements into oral arguments. But I’d be surprised if he really intended to interject race into every void-for-vagueness challenge to a particular statute. Indeed, the audio seems to clearly indicate that he said: “as an originalist matter”—not a racial one.
But typos in transcripts aren’t unheard of. After all, the court reporter is working under time pressure. But these particular transcripts seemed to take FOREVER to come out—especially to a reporter on deadline.
Transcripts of the day’s first argument typically go up on the Supreme Court’s website around 1 p.m., Eastern Time. That day, it was several hours later.
Given the excruciatingly long time it took to get the transcripts out, such a typo seems unforgivable.
It turns out that the Supreme Court had switched from its long-time courtroom reporting service, Alderson Court Reporting, to Heritage Reporting Corp. It was the first day of the term, and their first day on the job. First day jitters, right? Surely they’d get better.
Reporters and court-watchers were again kept waiting the next day for the transcript in a potentially earthshaking redistricting case.
Although Heritage was able to speed up its transcript delivery as the October sitting progressed, it still wasn’t as speedy as Alderson’s release times.
And the typos...
They got a justice’s name wrong... IN THE SAME CASE.
And who even knows what went on during Hamer v. Neighborhood Housing Services of Chicago.*
Maybe I’m being too hard on them, though.
Sure, Heritage touts itself as having “successfully performed court reporting contracts for the U.S. Government for over 29 years,” including “proudly report[ing] on over 15 million original certified transcript pages for Federal Courts, Regulatory Agencies, private law firms and corporations.”
But any new job takes time to get used to.
Turns out, though, that this isn’t a new job for Heritage.
“Heritage provided these same services to the Court many years ago,” a Supreme Court spokeswoman told Bloomberg BNA.
When Alderson “chose not to renew its contract,” Heritage’s “proposal demonstrated the best quality, experience and value for the government,” the spokeswoman said. That’s why it was “selected by the Marshal, who is the contracting agent for the Court.”
Stay on top of all the latest Supreme Court news with a free trial to United States Law Week.
* Big thanks to John Elwood for compiling these tweets in one handy place!
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