Posted on 05/26/2014 4:37:06 PM PDT by SeekAndFind
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.
@DrJJoyner That was my next question. So other courts have cited portions of decisions which later changed?
— Jazz Shaw (@JazzShaw) May 26, 2014
@JazzShaw Sure. New SCOTUS decisions get immediately incorporated into briefs and rulings and then become live secondary sources.
— James Joyner (@DrJJoyner) May 26, 2014
@DrJJoyner And those depending decisions aren't later modified to reflect the changes in the original citation?
— Jazz Shaw (@JazzShaw) May 26, 2014
@JazzShaw I doubt it. More often than not, they wouldn't realize the error. Remember, the rulings aren't changing here, just the explanation
— James Joyner (@DrJJoyner) May 26, 2014
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.
Supreme Court Justices are your run-of-the-mill idiot lawyers. When they announce their decisions with all the pomp and circumstance surrounding them, greater legal minds tear them a new one. Going back to reach the same erroneous conclusion with a different perspective is an attempt to justify their appointment. These dudes and dudettes were not chosen for their brains. (or looks).
Can Roberts reverse his misguided Husseincare vote?
Homosexual marriage cases are cases decided incorrectly.
Here’s why:
1.. under traditional marriage laws, everyone is treated equally. A homosexual man may not want to marry a woman, but he has the same right to do so that anyone else has. So there is no equal protection argument, even though equal protection is a key element in these cases.
2.. This whole area of sexual orientation/sexual identity are not protected classes under federal civil rights laws. Meaning that judges are making a major error every time they say not allowing homosexual marriage is a civil rights violation against homosexuals.
3. Judges are changing the definition of a legal term and legal concept, in this case changing the definition of marriage, in order to rule the way they are ruling. I would love to know if there is any precedent for changing the meaning of a legal term.
It’s obvious that these judges are trying to bend over backwards to prove how liberal they are. There’s no way for them to arrive at their conclusions, that we must allow homosexual marriage, without invoking clearly illogical and ill defined legal reasoning.
Duh, Dred Scott.
RE: Can Roberts reverse his misguided Husseincare vote?
Not immediately. But he can redeem himself slowly. He can start by ruling in favor of the Sisters of the Poor and Hobby Lobby.
And have to return all that money?
Hell the Supreme Court's Dredd v. Scott was a major Catalyst for the Civil War.
Lets not forget Buck v. Bell
The sterilization of anyone deemed defective by the state.
I don't know why anyone would put any faith in the courts to save us.
They have been broken since Andrew Jackson.
What's worse is that many of their opinions are written in large part by their clerks, people recently just out of law school, good law schools, but not that experienced.
True but the clerks are only writing justifications and not the constitutional opinions. Justice: "This is my decision. Make it sound good."
And anyone who thinks the justices actually decide what cases are heard is out of touch with reality. Most cases are assigned to a clerk, who may or may not actually read your case, and writes a one-page summary. If you are not represented by a high-profile lawyer, you are pretty much screwed even if you suffered a great injustice.
You got it. . .
"If the two departments [Federal and State] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided not compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best." --Thomas Jefferson to John Cartwright, 1824.
More specifically, when state lawmakers actually studied the Constitution that they swear to defend, they knew that they could overturn unpopular Supreme Court case decisions by exercising the unique, Article V power of the states to ratify proposed new amendments to the Constitution.
In fact, the 11th, 16th and 19th Amendments are examples of the states amending the Constitution in response to unpopular Supreme Court case decisions.
The gist of the Constitution's Article V can easily be remembered with the following two rules.
The states are always right.
When the states are wrong, see Rule #1.
The problem is that the corrupt federal government doesn't want low information voters to find out that the states uniquely control what the Constitution says. This is because voters would ultimately catch on to the constitutional reality that the states have absolute control over the constitutionally limited power federal government, not vice versa as many citizens have been indoctrinated to wrongly think. So the corrupt media along with the corrupt feds keep alive the PC myth that Supreme Court opinions are the end of the road for interpreting the Constitution.
It was nice to read your reply. I wish Cliven Bundy had lawyers as good as you are.
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I don't know how you came to that conclusion. All nine justices meet on Fridays for a group conference to vote on which cases they will hear. They are alone in conference. No law clerks allowed. It takes four votes for a case to be accepted.
A fallacy that is, more than almost anything else, destroying the republic.
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