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Are Supreme Court Decisions “Final”?

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We are always taught that decisions of the Supreme Court are the “final” word on federal law in the United States. But what does this actually mean– especially in this day of instant electronically published opinions? According to a forthcoming article in the Harvard Law Review by my former Georgetown colleague Richard Lazarus, substantive changes may actual be made to opinions long after they are announced from the bench.

Most of those who study the court know that the Court’s website contains a logical disclaimer:

The “slip” opinion is the second version of an opinion. It is sent to the printer later in the day on which the “bench” opinion is released by the Court. Each slip opinion has the same elements as the bench opinion–majority or plurality opinion, concurrences or dissents, and a prefatory syllabus–but may contain corrections not appearing in the bench opinion.

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Caution: These electronic opinions may contain computer-generated errors or other deviations from the official printed slip opinion pamphlets. Moreover, a slip opinion is replaced within a few months by a paginated version of the case in the preliminary print, and–one year after the issuance of that print–by the final version of the case in a U. S. Reports bound volume. In case of discrepancies between the print and electronic versions of a slip opinion, the print version controls. In case of discrepancies between the slip opinion and any later official version of the opinion, the later version controls.

But I think most of us would have thought changes made to later versions would have been minor typographical, grammatical or other such errors. But as Lazarus demonstrates, the practice of making substantive revisions to announced decisions dates back to the earliest days of the Court.  Indeed, Lazarus notes that during the nineteenth Century, Justices “routinely”  made  “extensive substantive changes after the opinion [was] first announced in Court.”   While there is not as much amending today, Lazarus explains:

The Court nonetheless has retained practices regarding the revision of opinions that are long overdue for revision. Unlike any other domestic court, the nation’s Highest Court formally issues its opinions before they have been fully reviewed and checked for errors within the Court itself. The Justices do so apparently because of institutional pressures they feel to release opinions as quickly as possible, perhaps related to the desire to formalize an achieved majority before it might potentially change. But, whatever, the reason, the Justices have long embraced the odd, but by-now settled practice of routinely revising their initial opinions and justifying their doing so by asserting, in a largely-ignored notice, that only the U.S. Reports volume published many years later constitutes the “final,” “official” version of the Court’s opinions.

How should this practice be addressed? Lazarus makes a number of recommendations in his article, concluding:

At the very least, the Court should end the fiction of labeling its initial, published opinions as neither “final” nor “official,” and any specific changes should be subject to after-the-fact public notice. The latter reform in particular should mitigate electronic media’s tendency to perpetuate inaccurate versions of opinions. The mere fact of publication will also likely have positive effect on the Court’s procedures for determining when and what revisions are necessary and appropriate.

As described above, the Court should also consider a series of changes in its current practices that would provide greater structure and coherence to the revision process. Such reforms would extend to the possibility of notifying parties about certain categories of proposed changes prior to their adoption. However, precisely how those reforms should, in distinguishing between types of categories of error, strike the balance between providing greater transparency and
maintaining the essential confidentiality of the Court’s deliberative processes, is less clear — at least to an academic on the outside looking in. It is plainly not cost-free to invite over-eager advocates to have another round of input. And those within the Court are far better equipped than anyone on the outside to determine how best to re-strike that balance.

Lazarus makes good recommendations. We will see if any associated with the Court will take them to heart. But in any case, Lazarus’s article should be a useful word of caution to judges, scholars, and others who study, cite and rely on Supreme Court decisions to be on the look out for revisions.

HT: Adam Liptak, Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.