Secret Endless Editing of Published Supreme Court Opinions

Stare Decisis is one of the cornerstones of U.S jurisprudence.  Simply put, it means to “stand by things decided.” It is a touchstone of our justice system that requires courts to adhere, under many circumstances, to the principles of previous rulings.

Of course, exactly how (or whether) those previous rulings apply to each new set of facts is often a matter that rests on very slight turns of phrase that the court chooses to express its opinions and shade its intentions.

So what happens if the opinion of the court changes?  I am not talking about a new discussion, a new ruling, or a new case.  What happens if the written opinion of the court somehow… just… well… changes?

An intriguing column by John W. Dean from today’s edition of the Justia online publication Verdict discusses Harvard Law professor Richard Lazarus’ forthcoming article (and the New York Times article discussing it) which highlights the US Supreme Court’s practice of employing “secretive and dubious means” to alter its written and published opinions without public notice:

Secret Endless Editing of Published Supreme Court Opinions | John Dean | Verdict | Legal Analysis and Commentary from Justia.

How unsettling it must be to have fought your way all the way to the Supreme Court, argued your case, received a favorable ruling (or not), and then to see the “law” created by the decision shift subtly over the next days, months and even years as the “Bench Opinion” is trumped by the (potentially “corrected”) “Slip Opinion,” which remains published on the Court’s website until it is replaced by the (again potentially “corrected”) collected and printed opinions for the entire term in the U.S. Reports as much as seven years later.

But even this is not the whole story, for the U.S. Reports comes out first in paperback advance pamphlets called “Preliminary Prints,” which are themselves “corrected” again and finally bound into volumes that may span several sessions.  But wait, there’s more… the “final” bound editions contain errata sheets that may again “correct” former opinions, albeit usually only very slightly.

What does this mean for you?  Maybe not much.  But it does mean that any attorney who quotes Supreme Court precedent in a brief had better make sure he or she is not relying on a phrase or sentiment that has been “corrected out” of a subsequent generation of the opinion.

For the justice system as a whole, Dean suggests that Professor Lazarus’ study, if heeded by the Court, will help increase the institutional integrity of the court to the extent that it prompts “modest reforms” that lead to the elimination of what Dean describes as “secret editorial (and occasionally more than editorial) fixes.”

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