Supreme Court Quietly Changes Rulings After Releasing Them; Refuses To Reveal What Those Changes Are
from the supreme-court-needs-a-public-diff dept
But, as the article notes, there are times when these changes slip by almost entirely unnoticed, even when they're considered rather important:
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.”
In another case, the article notes that even the version of a ruling on the Supreme Court's own website is outdated.
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.
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.