May 25, 2014

"The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice."

"Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law," writes Adam Liptak in the NYT.
[A]side 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....

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.
This prominent article should force the Supreme Court to make these "change pages" publicly available. To privilege a few commercial publishers is especially shameful.

It's interesting that the Court feels free to change opinions in significant ways. Perhaps those of us who comment on new cases should focus quite intensely on getting particular sentences or arguments rewritten. We should regard the new cases as a proposed draft and keep litigating. As Russ Feingold once said: "This game's not over until we win."

You don't need access to the change pages, just a copy of Adobe Acrobat.
1) Open slip opinion PDF.
2) Open final opinion PDF.
3) Run the file compare tool.
4) Obtain report of character for character differences between the two files.
So places like Findlaw and Legal Information Institute should be doing this routinely. Maybe someone could do a blog that calls attention to interesting things like this. I suspect most of it is really boring.


Wince said...

Shit, Blogger won't even let us revise our comments!

George M. Spencer said...

How is this Constitutional, Professor?

Ought not the parties to a suit be assured of finality once the Supremes have issued their "decision"?

traditionalguy said...

OK. Philosopher Kings are at work breathing life into the Living Constitution. So what is new?

YoungHegelian said...

The NYT article seems to start off with the conceit that it's those nasty righties who are changing things after the fact (and that's the take away for my lefty FB friends), but then backs away from that conceit in the course of the article.

So, now I'm left wondering: 1) Has this after the fact revisionism gotten worse in recent times; if so since when? 2) Is one side or the other more "guilty" of revision? 3) How, in their own words, do the justices who perform these revisions defend the practice?

These are not subtle or profound questions. They fall well within the purview of the "Who-What-When-Where" technique for reporting on any story. That Liptak's article fails so miserably at answering them shows, yet again, how bad legal reporting is at the NYT.

KLDAVIS said...

You don't need access to the change pages, just a copy of Adobe Acrobat.

1) Open slip opinion PDF.
2) Open final opinion PDF.
3) Run the file compare tool.
4) Obtain report of character for character differences between the two files.

David said...

"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."

Never knew that before. Have they revised "official versions?" Do they have that right? Should they?

In this day and age, it should take a lot less than 5 years to get to the "official version."

David said...

And I agree with Young Hegelian that what is not in the article is quite revealing.

Ann Althouse said...

"In this day and age, it should take a lot less than 5 years to get to the "official version.""

Maybe they stall to have a window for change-making.

jdallen said...

Sounds more like revision of history, to me.


David said...

So now I've learned two new things in this post (at least.)

The existence of this change mechanism.

How do use Adobe Acrobat to compare two versions of a document.

Thank you KL Davis.

Opus One Media said...

Legislation from the bench? And who made the change in this instance? SCALIA?

C R Krieger said...

Is this similar to how laws passed by Congress continue to be modified as they are passed to the President for signature?  This is before the "Signing Statements".  I wonder, do signing statements apply only to the signing President or do they apply to the next President and the next Administration (e.g., DOJ and other agencies)?

It is funny that the cited Harvard Law Review article by Professor Richard J Lazarus is out there for us to read, but with a warning (with at least one typo in the warning) about revisions six or so months down the road.  Sort of like SCOTUS, but with a shorter time frame.  Maybe this happens everywhere but when you are talking with your spouse.  Mine is not prone to allowing me to revise and extend my remarks.

Regards  —  Cliff

Ann Althouse said...

"Legislation from the bench?"

It's a judicial opinion, which you can always asset it "legislation from the bench" (a typical way to criticize opinions you think are wrong). The issue here isn't whether the opinion is an example of judges making up the law (rather than properly following a judicial methodology). It's changing the opinion after the first version is published. The Court fixes its own mistakes, basically.

Ann Althouse said...

Scalia made a conspicuous, embarrassing blunder recently, and it was quickly fixed, and Liptak looked into how this isn't uncommon and it's just not normally noticed.

To me, the big issue is that we rely on earlier versions and may never notice the changes, which I think should be conspicuous.

It's not even the same as reopening a judgment (which lower courts do and parties can make a motion to do) — see Federal Rule of Civil Procedure 60 — it's revising what was always referred to as non final and subject to revision before the final publication.

Ann Althouse said...

"It's a judicial opinion, which you can always asset…"

= It's a judicial opinion, which you can always assert...

Rick Caird said...

Well, outside of Obama, we do not allow legislation to be modified after it is passed and signed. Hence, court decisions should be static because they have the same force of law. If the opinions are not ready to be released. They should not be released. If the text of an opinion is changed, the opinion should be rereleased with the change noted.

Nichevo said...

Oh, so it's like in the Congressional Record where they will often mop up after somebody who shit the bed. I see.

Skyler said...

From Kelo to the Affordable Care Act, to homosexual marriage, the court is steadfastly approaching a time when it becomes ignored and ridiculed by states and lower courts.