Are Supreme Court opinions final? Apparently not so much.

The question found in the title of this post seems self-evident, or so I’d have thought. In questions of constitutionality and the laws of the land, the Supreme Court has the final word. (At least unless and until a later court revises the position.) But Dr. Joyner examines a study from Adam Liptak at the Gray Lady which indicates that precisely how final their opinions are and particularly when they become final is a bit more fluid than one might think.

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and 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. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced…

[T]he precise wording of opinions matters because they provide a guide to the legal reasoning behind the ruling. While some language is considered mere “dicta,” having no precedential value, text is quite often cited years—sometimes decades or even centuries—later as part of the argument for a case having nothing whatsoever to do with the specific controversy that brought the conflicting parties to court. Given the proliferation of opinions in various highly credible online fora, it only behooves the Court to ensure that people know which versions are authoritative and what language has been revised over time and is no longer operative.

There are two aspects to this question, one which seems completely reasonable and one which is problematic to the point of constituting a potential crisis in constitutional government, at least to my way of viewing it. The first is the questions of typographical errors and misdirected citations or incorrect names and case numbers of previous cases as precedent. Given the length of some of the decisions coming from the court and the number of them they wind up churning out at the end of a session, it’s completely understandable such errors could be released. Given time to review them thoroughly with an editorial eye, such things can be cleaned up before the decision is formally released into the United States Reports.

The second question is more troubling. Apparently, while not entirely turning a finding on its head, there have been a number of substantive errors in some of the slip and bench opinions which are initially published. Dr. Joyner’s partner, attorney Doug Mataconis notes this in a separate piece tackling the same question.

While it doesn’t appear that these revisions have ever actually resulted in substantive changes in the holding of an opinion, or in the substance of the legal argument made in a majority, concurring, or minority opinion, they still clearly go beyond merely correcting typos and proofreading errors. The Scalia and Kagan cases, for example, involve the correction of rather obvious factual errors that somehow made it through the drafting phase. While that’s not necessarily objectionable, the fact that it was done with little notice does raise concerns. The O’Connor and Ginsburg case raise different questions. In both of those cases, the changes appear to make substantive changes in the arguments that both Justices made, and while they didn’t change the conclusions they reached, they were more than mere corrections of a typo.

If you’re waiting for the other shoe to drop, the above objections are not the end of the problem nor really the serious part. Even if the errors are substantial, assuming they are found and edited before final entry into the United States Reports, there would be little problem aside from some potential short term confusion. But that’s not the case. I was discussing this issue with Joyner on Twitter today and he confirmed that these sometimes erroneous bench and slip opinions can and are cited as precedent in other cases. And even after the SCOTUS decision is amended to correct the error, a corresponding correction is generally not made in the lower court decisions which rely on them.

Maybe this hasn’t really caused a substantive error in appellate courts. But on the other hand, maybe it has. How would we know without someone doing a detailed examination of each version of every SCOTUS decision which was modified and then searching for the unedited text in every lower court decision which cited it? And who precisely is going to embark on a task like that?

This may be nothing, but it certainly sounds disturbing.