The New York Times recently published an article entitled “Final Word on U.S. Law Isn’t: Supreme Court Keeps editing.” (5/24/14) Although it appears in the ostensibly “popular” press, every attorney needs to read this article and consider what it means for their practice.
Everyone relies heavily on Supreme Court opinions. If we know that a new decision is due on an issue relevant to one of our cases, we almost instinctively defer action if possible to see whether the Court’s pronouncement will affect our strategy. When these opinions appear, we all spend time pouring over them, because every word matters. Anything thing the Court says – no matter how seemingly minor or trivial – can have a far-reaching effect on a particular case, area of law, or the legal system.
The problem is that there are actually several “generations” of Supreme Court opinions, and only the last version may truly be termed “final”. The first version is the “bench” opinion, which becomes available when a new decision is announced. The second version is the Slip Opinion, which appears on the Court’s website. The third version is a softcover print, which is followed by the “official” version that appears in the United States Reports.The Justices have the ability to revise their decisions between the different versions, and these revisions are not necessarily minor or technical. They can include substantive changes in facts and legal reasoning. Thus, as revisions are made from one version of an opinion to the next, our law is being changed.
This is not necessarily bad, except for a couple of small problems. The revisions are generally not announced, and are made without public notice. Thus, the relatively “early” versions of a decision can be works in progress, and the truly final (e.g., reliable?) version of an opinion may not appear in the United States Reports for five years from the date the first edition was announced.
Further, the Court almost never notes when an opinion was changed, and does not specify what changes were made. The only way to really ascertain if or how an opinion was changed is to obtain all of the prior versions and compare them manually.
Additionally, the final versions do not always completely supplant the prior editions. Sometimes, older versions of the Court’s opinions continue to appear on websites even after the final version has been published in the hard copy reports. Thus, different attorneys and/or judges addressing the same matter or issue could be using different editions of the same opinion.
Finally, and most surprisingly, the Court apparently makes it difficult for anyone to determine if or when changes were made. Obtaining older versions of opinions is not a simple matter, and the Court will do little, if anything, to assist someone in obtaining earlier editions. Like most of the Court’s operations, the editorial process is largely secretive.
There are two exceptions to the secret editing process described above. The United States Reports will occasionally contain a page of “errata”. The Court will also occasionally issue an Order formally revising an opinion.
When we were associates, many of us had the experience of being assigned to a partner who could not prepare a simple transmittal letter without putting it through a dozen revisions. As we all recall, writing a brief for that partner was an absolutely nightmarish experience. We laugh about it now but, at the same time, we remember standing in the partner’s office at 2:00 am watching them re-edit the brief so that it read pretty much like one of the many prior versions. However, our brief did not effect the laws of the entire Nation and it’s citizens. It did not matter if nobody knew what changes were made, or if prior drafts were unavailable. Obviously, the same cannot be said about Supreme Court decisions which, in a very real sense, are the law of the land and impact on all of us. The Justices are human beings and, like all of us, make mistakes that they want to correct and that’s fine. But the fact that these changes are made secretly, not announced, and then difficult to learn about subsequently is problematic for a legal system that depends upon openness, stability and predictability.