Blog Viewer

Supreme Court Edits Opinions Years Later, Quietly

By Noah C. Hagan posted 08-18-2014 11:11

  

In a forthcoming Harvard Law Review article, Harvard Law professor Richard Lazarus recounts several examples of the U.S. Supreme Court’s practice of quietly making substantive revisions to opinions. As Lazarus points out, Supreme Court opinions include this notice:

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

The Court does not, however, issue any notice when actual changes are made to opinions. Moreover, many of the changes are not merely “typographical.” In its online story on this issue, the New York Times includes an interactive graphic showing the differences made to opinions. For example, in EPA v EME Homer City Generation, LP, 134 S Ct 1584 (2014), Justice Scalia fixed an error in his dissent, where he confused the EPA’s position in a prior case (although he had written the majority opinion in that case). He fixed the error quickly.

In another example, Justice O’Connor altered her concurrence in Lawrence v Texas, 539 US 558 (2003), by omitting a sentence where she had asserted that Justice Scalia’s dissent appeared to agree with the majority ruling. Before she made this change, however, a circuit court judge had relied on this sentence in his dissent from a denial of en banc rehearing. Lofton v Secretary for the Dep’t of Children & Family Servs, 377 F3d 1275 (11th Cir 2004) (Barkett, J., dissenting). And, law professors have taught Lawrence using casebooks that include the sentence, which also continues to appear on Cornell’s Legal Information Institute website.

This practice is apparently longstanding, with Justice Roger Taney adding 18 pages to his majority opinion in Dred Scott v Sandford, 60 US 393 (1857). Although more recent “corrections” may not be as extensive, the Supreme Court tellingly refused to provide copies of its correction pages to the New York Times. The Court maintains that the “final, official” versions of its opinions are those found in the “printed bound volumes of the United States Reports.” But those volumes are published several years after the original opinion announcement. (For example, the official versions of opinions from 2008 were published in 2013.)

As Professor Lazarus argues, the Supreme Court should make its corrections public. Because opinions are now available electronically in a variety of places, failing to notify the public about edits perpetuates the problem of inaccurate opinions (as with the Lawrence concurrence above). A simple public notification process could help mitigate the problem. 

0 comments
114 views

Permalink