WASHINGTON — 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.
The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.
But
most 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.
Unannounced
changes have not reversed decisions outright, but they have withdrawn
conclusions on significant points of law. They have also retreated from
descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case.
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.”
Supreme
Court opinions are often produced under intense time pressure because
of the court’s self-imposed deadline, which generally calls for the
announcement of decisions in all cases argued during the term before the
justices leave for their summer break. In this term, 29 of the 70 cases
argued since October remain to be decided in the next five weeks or so.
The
court does warn readers that early versions of its decisions, available
at the courthouse and on the court’s website, are works in progress. A
small-print notice says that “this opinion is subject to formal revision
before publication,” and it asks readers to notify the court of “any
typographical or other formal errors.”
But
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.
Four
legal publishers are granted access to “change pages” that show all
revisions. Those documents are not made public, and the court refused to
provide copies to The New York Times.
The
final and authoritative versions of decisions, some published five
years after they were announced, do not, moreover, always fully supplant
the original ones. Otherwise reliable Internet resources and even the
court’s own website at times still post older versions.
The
only way the public can identify most changes is by painstaking
comparison of early versions of decisions to ones published years later.
But there have been recent exceptions. Last month, Justice Scalia made a misstep in a dissent
in a case involving the E.P.A. Under the heading “Plus Ça Change:
E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the
agency for seeking such authority in a 2001 case. But he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.
Law professors pointed out the mistake, and Justice Scalia quickly altered his opinion, revising the text and substituting a bland heading: “Our Precedent.”
Even more recently, Justice Elena Kagan this month corrected her dissent in Town of Greece v. Galloway, modifying a categorical assertion about the location of the first community of American Jews.
The court did not draw attention to the changes, but they did not go unnoticed. Other revisions have. A sentence in a 2003 concurrence
from Justice O’Connor in a gay rights decision, Lawrence v. Texas, has
been deleted from the official record. She had said Justice Scalia
“apparently agrees” that a Texas law making gay sex a crime could not be
reconciled with the court’s equal protection principles.
Lower court judges debated the statement,
and law professors used it in teaching the case. The statement
continues to appear in Internet archives like Findlaw and Cornell Law
School’s Legal Information Institute.
But it has vanished from the official version published in 2006 and from the one available on Lexis, a legal database.
“They
deliberately make it hard for anyone to determine when changes are
made, although they could easily make that information public,”
Professor Lazarus wrote in the study, which will be published in The
Harvard Law Review.
In 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.
The
court also corrects factual errors, including, in recent years, ones
about who was president in 1799, which senator made a particular
statement and whether a defendant was convicted or merely indicted.
After-the-fact
editing is not a new phenomenon. “The current court did not begin this
practice, which finds its origins in the court’s earliest days and has
extended to all justices over the years, liberal and conservative, but
the court today can take the steps to correct it,” Professor Lazarus
said. “Easy to do, and long overdue.”
The
court seems to have been even more freewheeling in the past. Chief
Justice Roger B. Taney added approximately 18 pages to his 1857 majority
opinion in the Dred Scott decision after it was announced.
There are indications in former justices’ papers that the court knows that its editing practices are open to question.
By
making a “considerable number of corrections and editorial changes in
the court’s opinions after their announcement and prior to their
publication in the United States Reports,” a court official wrote to
Chief Justice Warren E. Burger in 1984, “we actually operate a system
that is completely at odds with general publishing practices.”
In
an internal memorandum in 1981, Justice Harry A. Blackmun offered
reasons that the court operated “on a strange and ‘reverse’ basis, where
the professional editing is done after initial public release.” Once an
opinion has garnered the five votes needed to have it speak for the
court, he said, the author wants to issue it immediately to guard
against defections and “get ‘on the scoreboard.’ ”
There
are four generations of opinions, and only the last is said to be
final. So-called bench opinions, in booklet form, are available at the
court when decisions are announced. Slip opinions are posted on the
court’s website soon after. They are followed by preliminary softcover
prints and then by the only official versions, which are published in
hardcover volumes called United States Reports. The official versions of
opinions from 2008 were published in 2013.
There
are two exceptions to the general practice of quietly slipping changes
into opinions. One happens only after the decisions are published in
final form. The hardcover books sometimes contain a page of “errata.”
The
court also issues an occasional order formally revising an opinion. The
most recent notable example was in 2008, when the court learned that it
had banned capital punishment for child rapists partly based on the
faulty premise that no federal law allowed such executions. In denying a
motion for rehearing, the court issued an order revising parts of the original decision to reflect the correct information.
But
most changes can be found only by careful comparison or in the “change
pages” that the court does not make public. Professor Lazarus obtained a
year’s worth of the pages but was denied access to more. He said the
court should consider posting them on its website.
“Of
course the justices make mistakes,” he said. “And, of course, they can
correct them. They just need to use a process that is more in keeping
with the integrity and rigor of the process that produces the opinions
in the first instance.”
No comments:
Post a Comment