The (Non) Finality of Supreme Court Opinions

Abstract

The need for formal procedures for revising previously printed and published versions became acute in the late nineteenth century once private publishers began routinely publishing both the original opinions and the final opinions appearing in the United States Reports . ... The "ground rules" for making editorial changes in initial, published opinions prior to the final United States Reports publication are set forth in a letter from the Reporter to a Justice " i n connection with a Justice's first opinion for the Court." ... In light of the strikingly hostile tones evident in the correspondence between Chief Justice Taney and Justice Curtis, the exchange's most important legacy may be the institutional necessity of settled understandings regarding the timing, revising, and final publication of opinions of individual Justices and of the Court. ... Justice Rehnquist filed a separate opinion concurring in the judgment, which three other Justices joined. ... Because the case was so recently decided, it is too soon to know whether the Court will identify any "formal errors" in the opinion warranting revision prior to publication in the final United States Reports . ... The revisions made through change pages have plainly included changes of substance, the examples of which reveal Justices changing opinions for the Court and for themselves individually for wide-reaching and potentially open-ended reasons. ... The inquiry here, however, is not what the Supreme Court must do, but what practices it should follow in revising its opinions to be consistent with both the rigorous procedures that the Court imposes on the advocacy that frames its decision making and the exalted role the Court's opinions serve in our nation's laws. ... Once the Court routinely makes known the corrections, the Justices would invariably develop and apply more consistent and disciplined procedures in determining what types of corrections are warranted in specific circumstances.