If high school social studies classes study the Supreme Court, they often mention Marbury v. Madison, one of the most famous cases in early U.S. jurisprudence. The case contains one of the most famous articulations of the powers of the United States courts: “It is emphatically the province and duty of the judicial department,” Chief Justice Marshall wrote, “to say what the law is.”
As Professor Richard Lazarus recently pointed out in an article that is forthcoming in the Harvard Law Review, it is apparently the province of the Supreme Court to say what the law is in an issued opinion — and then edit the opinion later, without much fanfare.
The most recent Justice to edit an issued opinion is Justice Ruth Bader Ginsburg, who last week altered her dissent to the Court’s order permitting a Texas voter ID law to go into effect. As the New York Times reported, Justice Ginsburg’s dissent offered a long list of IDs that would not be accepted as permissible voter ID, and mistakenly included ID cards issued by the Department of Veterans Affairs. After legal academics noted the error, Justice Ginsburg removed the reference from the list and made “small stylistic changes,” according to a Court spokeswoman.
Let’s back up and lay some groundwork for how these edits happen. In the earliest days of the Court, the Justices rarely issued text opinions at all; instead, they would read decisions from the bench, and Supreme Court reporters would take notes and compile an opinion. At the beginning of the nineteenth century, however, the Justices began to issue written opinions more and more frequently, particularly in important cases. By the end of the century, informal publications had sprung up to publish the Court’s opinions soon after the decision was issued, before the Court published the official copy of the opinion in the United States Reports a month or two later. Finally, in 1922, the Court itself began routinely issuing “slip opinions” of decisions on the day of announcement. Lazarus records, however, that the Court maintained three major “pathways” to maintain editorial control over opinions after they had been issued to the public.
First, Justices can correct opinions by issuing official errata in later volumes of the United States Reports. Second, they can issue orders to correct previously published opinions. Lazarus characterizes both these avenues for ex post editing as “completely transparent.” The final method, however, is somewhat less apparent, save for a boilerplate disclaimer at the top of slip opinions that they are “subject to formal revision.” Under this pathway, Justices have the opportunity to update opinions without any formal announcement. Indeed, Lazarus concludes, the Justices “deliberately make it hard for anyone to determine when changes are made.”
Many of the changes to published opinions — the vast majority, in fact — truly are minor grammatical corrections: things like correcting stylistic and typographical errors and misspellings (up to and including the occasional error in spelling a Justice’s name). Lazarus discovered, however, that many of the changes over the Court’s history have been substantive, and might alter the meaning or the reasoning behind the opinion.
The most extreme example that Lazarus identifies is Chief Justice Taney’s addition of almost eighteen pages of text to his majority opinion in Dred Scott v. Sanford, in which he significantly revised and expanded his reasoning to respond to multiple dissenting Justices. Adam Liptak at The New York Times highlights some recent instances of change, including Justice O’Connor’s removal of a description of common reasoning between the Justices, Justice Scalia’s correction of an erroneous characterization of the EPA’s position on an issue and Justice Ginsburg’s alterations of some of the points that she made in two civil rights opinions. As Liptak summarizes, “the Court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record.”
Today more than ever, technology is changing the way that legal scholars are able to access information from the Court: SCOTUSblog and other media outlets provide real-time coverage of opinion announcements, and the Court posts new opinions as they’re announced on its website. Indeed, the Court just debuted a new website at the beginning of this Term, designed to be more accessible and easy to navigate for the public. A twitter account sprung up in response to Lazarus’s article in order to automatically detect changes in the text of opinions.
The Court has largely resisted opening its proceedings to the public at large. Members of the public can attend oral arguments and the announcement of decisions, but the Court has refused to permit television cameras or visual recordings in the courtroom. Transcripts of oral arguments are generally released the day of the argument. Audio recordings of the arguments are released, but only at the end of each week. Indeed, the Court has been historically reluctant to be too open about its proceedings and its quirks, even in the face of a technological boom that has revolutionized the way that citizens consume information about law and government.
Justice Ginsburg’s recent change to her dissent is so notable because it is also a change to the Court’s policy of historical reticence. Instead of hiding the change, Justice Ginsburg asked that the Court spokeswoman announce it to the press. Although the edit is a minor one, it may show a major shift in how the Court approaches making these changes in the future, and might even signal an acknowledgement of the fact that the fast pace of legal coverage means that the Court must be more responsive than ever to changing conditions. With this latest edit, the Court changed its opinion, and its tradition.
Michael Mestitz is the President of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s Managing Editors. Contact them at mmestitz ‘at’ stanford.edu and cayres ‘at’ stanford.edu.