Sunday, May 25, 2014
Courts - "Final Word on U.S. Law Isn’t: SCOTUS Keeps Editing"
On July 23, 2013, the ILB has a long post headed "Ind. Courts - Current process for dealing with corrected appellate opinions poses perils." The ILB has had earlier posts (as early as 2007) on the same topic, plus a number of more recent ones. I had planned to pull all these together into a new post, with as its focus the 7th Circuit's published correction to its Paintball opinion. That is still my intent. But first, this morning Adam Liptak had an astonishing Sunday NYT front-page story about the Supreme Court of the United States that begins:
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 upcoming, but not until December, Richard Lazarus, 87-page law journal article is available in draft form here. It is titled "The (Non)Finality of Supreme Court Opinions," and begins with an amusing notice about it not being the final version.
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Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law.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.
[More] There are many comments on the article from NYT readers. Here are two I particularly like:
- The issue is not that there are minor or typographic corrections. The issue is that corrections, whether minor or substantive, ought be a matter of public record and that record should be made contemporaneously with the modification.
Any other approach is a departure from now generally accepted publication practice, and can reasonably be characterized as intellectually dishonest.
- I think it's fine that corrections be made. No one is perfect and we should accept that people make mistakes. (And let's face it: many of the mistakes are probably made by harried clerks). What is totally not fine is that there is no transparency to this. Why can't there be a marked-up version showing what was changed? And why can't there be an announcement of the changed version on the Court website? As many comments here indicate, the SCOTUS is undermining its own credibility by doing this secretly.
Posted by Marcia Oddi on May 25, 2014 09:40 AM
Posted to Courts in general