Supreme Court Quietly Changes Rulings After Releasing Them; Refuses To Reveal What Those Changes Are

from the supreme-court-needs-a-public-diff dept

The NY Times has a fascinating article about how the Supreme Court often changes rulings long after they've been released, sometimes changing them significantly, but rarely doing anything to alert the public (or lawyers and legal scholars) of those changes. The article is based on a forthcoming paper by Richard Lazarus on the (Non)Finality of Supreme Court Opinions. While many of the changes are small edits to fix errors, sometimes they can be fairly big deals. In some cases, the errors were so egregious that the change makes news:

Last month, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the agency for seeking such authority in a 2001 case. But he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.

Law professors pointed out the mistake, and Justice Scalia quickly altered his opinion, revising the text and substituting a bland heading: “Our Precedent.”

But, as the article notes, there are times when these changes slip by almost entirely unnoticed, even when they're considered rather important:

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.

But it has vanished from the official version published in 2006 and from the one available on Lexis, a legal database.

In another case, the article notes that even the version of a ruling on the Supreme Court's own website is outdated.

This is an easy problem for the Supreme Court to fix: they should make their change page open to the public and post the diff whenever they make a change, so that anyone can quickly see how a change was made. But they don't do this. While the Supreme Court does have change pages that show all the revisions, they are blocked from public view, and only four private legal publishers are given access. There is simply no reason for this, and it again leads to a situation where we have private, secret law, rather than a public law. It's a dangerous and shameful practice, and one that the Supreme Court could easily end tomorrow. It should do so.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Ninja (profile), May 27th, 2014 @ 10:36am

    It's a dangerous and shameful practice, and one that the Supreme Court could easily end tomorrow.

    It could. Obama could stop mass surveillance as easily. But he won't. USTR could include the public in the negotiations as easily.

    Why indeed.

     

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  2.  
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    Anonymous Coward, May 27th, 2014 @ 11:12am

    "It's a dangerous and shameful practice". Only if the country was a democracy. Since the US is an oligarchy, there is no need to include the public.

     

    reply to this | link to this | view in thread ]

  3.  
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    Anonymous Coward, May 27th, 2014 @ 11:22am

    Scalia's mistake makes it looks like he has dementia.

    It wouldn't be surprising at all if at least a few Supreme court judges have come down with Dementia/Alzheimer while on the bench, with so many of them serving for life or near life.

     

    reply to this | link to this | view in thread ]

  4.  
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    PRMan, May 27th, 2014 @ 11:24am

    Funny...

    I was just thinking this today about online statements for your bills. If you didn't print them every month and you had a dispute, they could retroactively change them to support their case and you would have no evidence.

    Wells Fargo just tried to switch me away from US Mail (with a forced agreement that then required me to go into a page to change it back, which failed, nice).

     

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  5.  
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    kenichi tanaka (profile), May 27th, 2014 @ 11:28am

    This sort of thing has been going on for a long time. It's only now that people are making a big issue out of it? The Supreme Court always made adjustments to their own rulings and it's perfectly within their right, unless something is done to reform the Supreme Court.

     

    reply to this | link to this | view in thread ]

  6.  
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    madasahatter (profile), May 27th, 2014 @ 11:28am

    Hold over practice?

    Given the average of the 9 Seniles, is this a hold-over from when the opinions would be released, errors corrected, then printed? My guess is the Seniles have not collectively grasped how easy it is to version control documents.

     

    reply to this | link to this | view in thread ]

  7.  
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    Chris Rhodes (profile), May 27th, 2014 @ 11:29am

    Version Control

    I'd love to see a new GitHub account for the SCOTUS.

     

    reply to this | link to this | view in thread ]

  8.  
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    DannyB (profile), May 27th, 2014 @ 11:30am

    Secrecy to preserve the Integrity of the Law

    If just anyone could know the laws, then people could copy them!

    Applying copyright protection would not help.
    Applying patent protection would not help.

    We must keep the laws secret to protect them from the public, who as we all know, are a bunch of evil thieving pirates determined to destroy the global economy!

    The best solution to safeguard our democracy would be to keep the laws from ever being fixed into any tangible form, including any digital form. The people in charge would know what the law is on any particular day, and if someone is accused of anything, the people in charge can confirm whether or not a law has actually been broken. That way justice and due process are preserved.

    Precisely which law has been broken should not be disclosed to protect the secrecy of the laws. If bad people were to discover what the laws are, or the precise contours of the law's boundaries, then they might try to do things by operating within the law.

    To ensure swift resolution so that important people's work and lives are not disrupted, a fee could be paid by the accused to make use of the justice system's "fast lane".

    Because knowledge transfer of the law goes hand in hand with power transfer as people succeed others in office, we should lessen the burden by keeping people in office for longer periods. This also has the beneficial effect of giving society the blessings of the experience of someone who has been in office before most people were born, or most new technologies were introduced.

    When fighting terrorists, no solution is perfect, and I am sure that this idea may need some tweaks to strike just the right balance before this can be made into a petition.

     

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  9.  
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    Glenn D. Jones (profile), May 27th, 2014 @ 11:33am

    If the legal code is law, then changes must be documented

    IANAL, but I don't understand how such changes to the legal code can go undocumented.

    Imagine how much more restrictive fair use would become if the words "purposes such as" were suddenly removed:

    i.e.,

    "for purposes such as criticism, comment, [...]"

    became

    "for criticism, comment, [...]".

    I realize that fair use was defined in the Copyright Act of 1976 -- not a ruling from the Supreme Court -- but my point is that even the removal of three words could have a devastating impact on rulings that have come to be relied upon.

     

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  10.  
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    DannyB (profile), May 27th, 2014 @ 11:37am

    Re: If the legal code is law, then changes must be documented

    Documentation of changes to the law is not enough.

    Changes need to be widely noticed by the public.

    Basically, a change needs to be highly visible like a "commit".

    With many eyes, all bugs can be traced to the responsible lobbyists.

     

    reply to this | link to this | view in thread ]

  11.  
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    Anonymous Coward, May 27th, 2014 @ 11:37am

    Re:

    What makes you think Democracy is a solution to this particular problem? Corrupt political thugs protect each other be it Republic (Our Government form), Democracy, Theocracy, Bullshitacy, or Cthulucy!

    We are not, never where, and hopefully never will be... a democracy.

    The only protection from this is for the idiot electorate to stop being baited by the Grand Illusion that is R vs D!

     

    reply to this | link to this | view in thread ]

  12.  
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    Beta (profile), May 27th, 2014 @ 11:38am

    What's the big deal?

    Anyone can fix this by maintaining an archive site. It's not as if MiniTruth goons are going to show up to revise your records of what the SC site used to say.

    And I think "private, secret law" is an overstatement. These revision records give insight into the Justices' thought processes (such as they may be), but they don't have legal weight, they can't be invoked or even cited as precedent. At worst they might give a slight edge to someone preparing to argue before the SC.

    Do not attribute to sinister conspiracy what can adequately be explained by eighteenth-century thinking and aversion to embarrassment.

     

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  13.  
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    DannyB (profile), May 27th, 2014 @ 11:39am

    Re:

    The effects of lobbying can be misinterpreted as dementia.

     

    reply to this | link to this | view in thread ]

  14.  
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    DannyB (profile), May 27th, 2014 @ 11:40am

    Re: Re:

    See my post below about keeping the law a secret? A good way to get half the people to vote for it is to slap either an R or a D branding onto it.

     

    reply to this | link to this | view in thread ]

  15.  
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    DannyB (profile), May 27th, 2014 @ 11:46am

    Re: What's the big deal?

    How much you wanna bet that such a site, maintaining an archive of the laws, would get taken down by the super-dooper powers of the DMCA!

    Alternately, edits to your site could be introduced, to protect us from terrorists, through the use of secret National Security Letters and secret warrants, from secret courts. What better way to have secret laws?

     

    reply to this | link to this | view in thread ]

  16.  
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    John Fenderson (profile), May 27th, 2014 @ 11:47am

    Re:

    "It's only now that people are making a big issue out of it?"

    No, it's not only now.

    "it's perfectly within their right"

    I don't think anyone is saying otherwise. They're just saying it's a bad practice to change the ruing without letting everyone know of the change.

     

    reply to this | link to this | view in thread ]

  17.  
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    Anonymous Coward, May 27th, 2014 @ 12:17pm

    Re: Re:

    I think you have your judges mixed up.

    It's Thomas who has a wife who's a political activist who gets big money in 'consulting' fees from political groups that have a vested interested in cases that come before her husband! Oh, and don't forget that Justice Thomas also went for many years NOT reporting that income (several million dollars worth) in judicial disclosure reports, as required by law!

    He claimed he simply didn't understand the law and that it met his wife's income had to be reported to!

     

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  18.  
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    Groaker (profile), May 27th, 2014 @ 1:05pm

    As far as I can see, this is the modification of a business record, a crime for which the perpetrator should go to jail. SCOTUS is in effect changing the law, at whim, without due process.

     

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  19.  
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    Beta (profile), May 27th, 2014 @ 1:16pm

    Re: Re: What's the big deal?

    If displays of SC rulings can be censored with or without the DMCA (and I'm not saying that they can't), that's a serious problem even if the SC revision history is pubic.

    You're pointing to a (hypothetical) problem that has nothing to do with secrecy of the SC revision history.

     

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  20.  
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    Anonymous Coward, May 27th, 2014 @ 1:19pm

    they are supposed to be the top judges in the country, yet it appears we cant trust them to put out verdicts that are anything except personal opinions, not ones based on law. what a strange legal system we have when a judge can change a ruling and keep it secret, just because it may make him/her look exactly what he/she is, a complete plum!

     

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  21.  
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    Anonymous Coward, May 27th, 2014 @ 1:25pm

    I suspect constitutional law professors will be running variation checks between initial and subsequent official releases from here on out.

     

    reply to this | link to this | view in thread ]

  22.  
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    Anonymous Coward, May 27th, 2014 @ 1:35pm

    Re: Re: Re:

    I read it... to bad far to many people would buy it, regardless of how sarcastic you are on it.

     

    reply to this | link to this | view in thread ]

  23.  
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    John Fenderson (profile), May 27th, 2014 @ 2:06pm

    Re:

    To be fair, the legal system is so complex and indecipherable that any legal ruling must necessarily be based on opinion. It's one of the main problems with the law.

     

    reply to this | link to this | view in thread ]

  24.  
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    DannyB (profile), May 27th, 2014 @ 2:42pm

    Re: Re: Re: Re:

    Any attempt to parody these people will sound like something they might actually say.

     

    reply to this | link to this | view in thread ]

  25.  
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    Wiki Media, May 27th, 2014 @ 3:59pm

    Re: Dementia.

    Ah, yes! The so-called "Regan Court."

    Nothing is more rusty than irony.

     

    reply to this | link to this | view in thread ]

  26.  
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    Mr. Thomas, May 27th, 2014 @ 4:08pm

    Re: Re: Re:

    I can see that you, proud commenter, should review your final sentence (no pun intended) and provide a revision. Please make sure that you note the change using strikeout and an appropriate color for the word, "meant". LOL.

     

    reply to this | link to this | view in thread ]

  27.  
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    Anonymous Coward, May 27th, 2014 @ 4:09pm

    We have always been at war with Eurasia.

     

    reply to this | link to this | view in thread ]

  28.  
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    Anonymous Coward, May 27th, 2014 @ 5:40pm

    Re:

    But I've been getting away with it for like EvAr .....

     

    reply to this | link to this | view in thread ]

  29.  
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    Mark Noo, May 27th, 2014 @ 11:52pm

    I was under the impression that in any case or administrative hearing both sides (and the public, most of the time) have a right to know the facts they used, the rule(s) they applied and the reasoning for it.
    This allows people to appeal if the facts were not complete or the rule doesn't apply because the agency (or whatever) doesn't have the authority (or any other reason) and finally we can attack faulty reasoning.
    Top secret stuff destroys fairness. I am just a paralegal, we need a lawyer to enlighten us.

    Law enforcement doesn't have to obey laws or tell us what they are doing. Now court proceedings are only released if the court feels like it.

     

    reply to this | link to this | view in thread ]

  30.  
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    alternatives(), May 28th, 2014 @ 5:06am

    Re: Re:

    To be even more direct - if the system is as complex as you say, what benefit would there be to consulting a lawyer on your encrypting email business other than to act as a wallet emptying service?

     

    reply to this | link to this | view in thread ]

  31.  
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    Mike Masnick (profile), May 28th, 2014 @ 5:31am

    Re: What's the big deal?

    Anyone can fix this by maintaining an archive site.

    How? If the SC doesn't publish the changed rulings themselves, and only gives it to private companies who keep it locked up, how would you find out about the changes to maintain an archive site?

     

    reply to this | link to this | view in thread ]

  32.  
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    John Fenderson (profile), May 28th, 2014 @ 8:05am

    Re: Re: Re:

    Seriously?

    First, "complex" does not mean "random", and even though a judges opinion is opinion, it is also not random. A lawyer knows what is or is not most likely to fly.

    Also, the most value you get from a lawyer is not what they do in court. It's what they do to keep you out of court.

     

    reply to this | link to this | view in thread ]

  33.  
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    Beta (profile), May 28th, 2014 @ 1:42pm

    Re: Re: What's the big deal?

    The SC publishes an "early version" and later on a "final version" (with a slowness and confusion of authority that I find sickening). So grab both versions as they appear, and you have your archive.

    (There may be intermediate versions that the public can't get, but I fail to see how they would be of any practical use for those not writing a book on the SC).

    But now that I think of it, there is one advantage to having access to the closed papers. Not so much in having access to the revision history that the public can't see at all, but in reading the final version before anyone else. This is a separate issue from the secrecy of revision histories, but I can think of a few ways it could be valuable to know what the law will say next year, before my competitors, if I were very wealthy...

     

    reply to this | link to this | view in thread ]

  34.  
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    Mike Masnick (profile), May 28th, 2014 @ 2:23pm

    Re: Re: Re: What's the big deal?

    The SC publishes an "early version" and later on a "final version" (with a slowness and confusion of authority that I find sickening). So grab both versions as they appear, and you have your archive.

    Again the "final version" is ONLY GIVEN to big publishers. It is not released digitally in many cases. You can't just "grab" the later version, because you have NO IDEA IT EXISTS.

    Yes, if the SC republished the new changed versions to its website, you'd have a point. THey do not. Sometimes they just change out the old version without alerting anyone. Sometimes they don't even change it and just give the final changed version to private publishers -- which is exactly what I stated. Twice.

     

    reply to this | link to this | view in thread ]

  35.  
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    Beta (profile), May 29th, 2014 @ 5:40pm

    Re: Re: Re: Re: What's the big deal?

    I think we're in violent agreement on this.

    It's true that the versions on the SC site are sometimes out of date (I missed that on the first reading), but the "final version" is what is published in the United States Reports (apart from the "occasional order formally revising an opinion" that has already been published). So maintaining the archive would be a bit more onerous than I thought, perhaps involving an OCR scanner and a visit to the public library.

    If you can point me to one case in which a version not yet published was used in court, I'll eat my words and apologize for missing the point. Twice.

     

    reply to this | link to this | view in thread ]

  36.  
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    R, Jun 25th, 2015 @ 1:07pm

    Re:

    Blaming Obama for Bush's policies again, I see.

     

    reply to this | link to this | view in thread ]


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