I was incredulous when I read Harvard law professor Richard J. Lazarus’ forthcoming article, The (Non) Finality of Supreme Court Opinions. In the article, Lazarus states that “the [Supreme Court] 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.” What?! I thought that an opinion released by the Court was definitive. In reality, however, only when an opinion has been published in the printed and bound United States Reports is it considered “final” and “official,” and this printing often occurs several years after the Court’s initial ruling. In fact, all bench opinions and slip opinions from the Court include this notice:
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
While changes made to opinions have never reversed an opinion, the Justices have withdrawn legal conclusions on significant points of law. The implication for legal researchers of the Court’s practice of “formal revision” in non-final opinions is significant. As Lazarus points out, many practical problems can arise “when the version of the court’s opinion upon which lower courts, other branches of government, and scholars and teachers rely can change—without notice—as many as five years after initial publication.” Lazarus recommends that the Court amend its current practices to at least provide disclosure of changes made to opinions. While the current revision practice is in place, however, researchers must meticulously verify that any language they rely upon in non-final Supreme Court opinions is accurate.
One new tool that researchers can use to recognize changes in recent Supreme Court opinions after their release is the open-source @SCOTUS_Servo Twitter feed developed by lawyer and coder David Zvenyach. Zvenyach’s code “scrapes” Supreme Court slip opinions, and sends a message to the Twitter account when it detects a change to an opinion posted on the Supreme Court’s website. @Scotus_Servo then tweets out an alert. The Twitter feed also features a side-by-side comparison between versions of changed opinions.
The moral of the story for legal researchers: check your cited Supreme Court opinions closely as the law of the land is not as final as you would think.