Supreme Court Continues To Edit Opinions After Release

The NYTimes recently reported that SCOTUS continues to edit its opinions after they are issued.

"The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include 'truly substantive changes in factual statements and legal reasoning,' said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon."

So what's the problem? The Justices make mistakes, and the editing process gives them a chance to make it right. The problem is that "[m]ost changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced. The larger point, said Jeffrey L. Fisher, a law professor at Stanford, is that Supreme Court decisions are parsed by judges and scholars with exceptional care. 'In Supreme Court opinions, every word matters,' he said. 'When they’re changing the wording of opinions, they’re basically rewriting the law.'"

The Court does warn that revisions may occur, "[b]ut aside from announcing the abstract proposition that revisions are possible, the court almost never notes when a change has been made, much less specifies what it was. And many changes do not seem merely typographical or formal."

The final and authoritative versions of decisions are published in the United States Reports, which may be published some five years after they were announced. These final decisions always fully supplant the original ones. However, "[o]therwise reliable Internet resources and even the court’s own website at times still post older versions." As an example, "[i]n revisions to two 2009 opinions, on school searches and race-conscious hiring, Justice Ruth Bader Ginsburg added phrases to clarify and broaden the points she had made. The changes appear in Lexis, but the court’s website still features the original versions."

Currently, "[t]he only way the public can identify most changes is by painstaking comparison of early versions of decisions to ones published years later." This is not an efficient process, and, as stated earlier, it leads judges and legal scholars astray.

The Court could do things differently, and instead of quietly slipping changes into opinions, the Court could submit changes only as "errata" to the original decision. The Court could also issue an order formally revising an opinion, which it already does on occasion."


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