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Remarking on the Supreme Court in his separate concurring opinion in Brown v. Allen, Justice Robert Jackson famously quipped, “We are not final because we are infallible, but we are infallible only because we are final.” As the Court itself makes clear, however, its published opinions are not immediately “final” at all. Just the opposite is true. The Court’s opinion in Brown itself was not final on the day it was announced, notwithstanding all the visible trappings and signature headings of the Court. It takes not just days or months but several years after the Court’s initial announcement and publication of its ruling before the Court releases what it is willing to describe as its “final” and “official” opinion.
Hiding in plain sight at the top of a Supreme Court opinion when first issued is a formal notice that makes clear its nonfinal and nonofficial nature:
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
This notice appears on both “bench opinions,” distributed by the Court at the immediate conclusion of the opinion’s announcement from the bench, and “slip opinions,” which the Court releases several days later. A similarly worded notice appears on the “preliminary print” of the United States Reports, published several months after the original opinion announcement. The notice states that this formally published version of the Court’s opinion is likewise subject to revision before publication in the “bound volume[s]” of the United States Reports and invites members of the public to notify the Reporter of Decisions of errors so that corrections can be made.
According to the Supreme Court, “[o]nly the bound volumes of the United States Reports contain the final, official text of [the Court’s] opinions.” Those volumes are published several years after the original opinion announcements. For instance, the Court handed down its final merits decisions of the October Term 2007 on June 26, 2008. The last volume of the corresponding set of United States Reports, including those final decisions, was not published until five years later. Five years is a long time to wait for the “final” and “official” version of a Supreme Court ruling. Since modern technology creates a public expectation of receiving information at lightning speed, a five-year delay might well be the psychological equivalent of a decades-long delay a half century ago.
The origins and potential implications of these seemingly innocuous notices are fascinating and take us back through the Court’s history, long before the express acknowledgment was included in the Court’s opinions. In what is unquestionably the most extreme instance, Chief Justice Taney in Dred Scott v. Sandford added approximately eighteen pages to his majority opinion between the time of his original announcement of the Court’s ruling and the publication of the opinion several months later. And, as recently as Lawrence v. Texas in 2003, striking down as unconstitutional a Texas law criminalizing sodomy, and EPA v. EME Homer City Generation, L.P. in April 2014, upholding a major agency rule promulgated under the federal Clean Air Act, Justices have revised their opinions in significant, including highly substantive, ways prior to their final and official publication in the United States Reports.
Examination of the Court’s practice naturally raises a series of questions. First, what does the Court mean by its suggestion that the initial slip opinions and preliminary prints are not “final, official” opinions? Unlike “proposed” rules that agencies publish in the Federal Register, Supreme Court opinions are legally effective as soon as they are first announced. Further, the Court prints slip opinions on in-house equipment; no unofficial third party is involved.
Second, what does the Court mean by “formal errors”? Are formal errors merely typographical errors, including technical errors in citation forms and grammar? Or does the term extend to factual mistakes? Further still, do the Justices make substantive changes in opinions under the rubric of a “formal error”? How frequent and how extensive are the changes that the Justices make?
Third, what notices are provided when Justices make changes? Are other Justices notified of changes before or after they are made? What about the parties to the case? Or members of the public? Is there an opportunity to comment on proposed changes?
Finally, what problems does the Court’s current process of revising opinions create? Do changes unwittingly introduce other errors? Does the lack of transparency invite Justices to make changes that they would be less likely to make if a more public acknowledgment were required? And, more particularly, do legal publications, lawyers, and judges sufficiently account for the Court’s revision process by ensuring that they are citing the “final, official” version? By what authority can Justices today correct “mistakes” in opinions published years or even decades before? Mistaken or not, those earlier opinions accurately state the words on which a majority of Justices, none of whom may currently serve on the Court, presumably relied in casting their votes at the time of decision.
The purpose of this Article is to answer these questions by exploring the history and significance of the Court’s practice of revising opinions, which legal scholarship has largely ignored. The Article is divided into three parts. Part I places the practice of revising Supreme Court opinions in its broader procedural and historical context. This includes a description of the formal stages in the Court’s opinion-writing process and a survey of the varied formal and informal processes for triggering and announcing revisions. Part I also catalogues the types of revisions that the Court makes, which from the Court’s earliest days to the present have included significant substantive changes.
Part II examines the actual practice of revising opinions. Not surprisingly, discerning this practice proved challenging. Although the Court has long revised its opinions and disclosed the fact that it does so, the Court has done little to make clear what changes have been made in individual cases. Instead, the Court deliberately makes discovery difficult notwithstanding the public nature of the revisions. This Part of the Article illustrates the scope and potential depth of the revision process by describing examples of revisions, extending from the early nineteenth century to the present. These examples do not reflect an exhaustive effort to discover all possible revisions. They represent just a sampling of instances that I discovered based on my review of several sources.
Part III considers options for improving the process and practice of revising Supreme Court opinions. This analysis requires identification of the advantages and disadvantages of the Court’s current process, and it discusses the contrasting processes that Congress and federal agencies use to revise statutes and regulations. To the extent, moreover, that such analysis and discussion of current practices implicitly or explicitly criticize the Court’s practices, any such criticism is not at all directed at the Office of the Reporter. At least since the early twentieth century, the Reporter’s Office has steadfastly performed its responsibilities, as instructed by the Court, with extraordinary skill, integrity, and professionalism. It is instead those Court instructions that this Article questions and that warrant rethinking and reform. The current Court did not itself create those instructions, which find their origins in practices that have persisted for decades if not centuries. The Court today, however, can easily fix them.