Last month, Justice Scalia's mistake in a case about air pollution made headlines. He quickly and quietly revised the decision. Amusing though the episode was, as the New York Times detailed over the weekend, it was not unusual. The court does this all the time! Judges: They're Just Like Us Bloggers.
The Times draws on a new study by Richard Lazarus, to be published in the Harvard Law Review, that explores the court's editing practices. As it points out in the introduction, Supreme Court opinions often have a heading which reads, "This opinion is subject to formal revision." But of course, the vast majority of people assume that means "rarely," and also that the changes are rarely substantive. Not so, says Lazarus. As the study's abstract puts it:
Apart from the anticipated routine proofreading corrections of typographical errors, misspellings, and incidental grammatical mistakes, which are many, the Justices routinely correct mistakes in majority and separate opinions relating to the arguments of the parties, record below, historical facts, relevant statutes and regulations, opinions of their colleagues, and Court precedent. The Justices also, even more significantly, sometimes change their initial reasoning in support of their legal conclusions... Unaware of the existence and degree of such changes, the public routinely refers to versions of opinions of the Court and of Justices that, while superseded, are nonetheless perpetuated through lower court opinions, websites, and even leading academic casebooks.
I feel a strange sympathy alongside the slight schadenfreude. Anybody who writes for a living knows how perilously easy it is to make and print mistakes, even when you're sure you've checked carefully. This is particularly true if you don't have a gauntlet of New Yorker-trained copy-editors and fact-checkers second-guessing you before the text is unleashed on the public.
Which, of course, the Supreme Court doesn't. They just have clerks, though the degree to which they listen to and rely on them varies by judge. Still, you'd think there would be more time to check yourself, given that the time that goes into writing an opinion is significantly greater than that which goes into your average #fuckeverything argumentative blog post or personal essay.
The obvious solution, of course, is to have the Supreme Court turn on blog comments, and let the public "correct" all their errors the moment the opinions are released. Preferably by .gif.
[Photo via AP.]
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