There’s been plenty of debate recently about Justice Antonin Scalia’s derision for incorrect word usage, especially when it involves the word “choate” (which, according to Scalia, is not a word, although lawyers use it all the time). Even the New York Times Magazine chimed in. During today’s argument in Briscoe v. Virginia, it was the Supreme Court bar’s turn to throw a curve ball to the court stenographer. Lawyer Richard D. Friedman went with “orthogonal” (which apparently means “lying at right angles”) during his argument. This seemed to stump Chief Justice John G. Roberts Jr. It didn’t take long for Scalia to jump in, prompting the following exchange:
JUSTICE SCALIA: What was that adjective? I liked that.
MR. FRIEDMAN: Orthogonal.
CHIEF JUSTICE ROBERTS: Orthogonal.
MR. FRIEDMAN: Right, right.
JUSTICE SCALIA: Orthogonal, ooh.
JUSTICE KENNEDY: I knew this case presented us a problem.
JUSTICE SCALIA: I think we should use that in the opinion …. or the dissent.
Scalia’s last remark was a reference to the fact that the argument was effectively a second go-around at last year’s Melendez-Diaz v. Massachusetts ruling in which Scalia wrote the majority opinion. He’s very much hoping he won’t need to use “orthogonal” in the dissent.
UPDATE: The court has issued a revised transcript in which the chief justice says “…or the dissent…”