Did Justice Breyer confuse Justice Ginsburg with Justice O’Connor?

November 9th, 2014

During oral arguments in Yates v. United States, Justice Breyer referred to the case of Kolender v. Lawson, which he noted was written by Justice Ginsburg. That is not correct. It was actually an opinion by Justice O’Connor, authored in 1983, a decade before RBG joined the Court.

JUSTICE BREYER: ­­ would be that the void for vagueness, if you look at Skilling, has two branches. From Kolender v. Lawson ­­ Justice Ginsburg wrote it ­­ a penal statute defining the criminal offense, one, with sufficient definiteness that ordinary people can understand. That’s what Justice Scalia has just talked about. You can understand what is prohibited.

Unless the court reporter made an error, and confused Ginsburg with O’Connor, this would seem to be a faux pas by Justice Breyer.

RBG has often stated that advocates would confuse her and Justice O’Connor on the bench. I think she’ll give the “Fourth Feminist” a pass here.

H/T The ever perceptive Jacob Berlove.