Monday, June 09, 2014
Limits on the Court's Revision Power
A few weeks ago, Professor Richard Lazarus posted a fascinating and much-discussed draft article documenting the Supreme Court's practice of revising its opinions after their initial publication. These often overlooked revisions, Lazarus shows, can extend to important points of law. Partly for that reason, Lazarus proposes various reforms to promote transparency, such as public notice of any post-publication changes.
In reading Lazarus's paper, I found myself wondering whether there are any limits on the Court's revision power. I think that there are. In particular, the Court probably has authority to modify the substance of a precedential opinion only when the relevant case is before the Court. Revisions at other times, such as long after the judgment and mandate have issued, seem like advisory opinions.
There are lots of situations where post-publication revisions don't implicate the Court's decision-making authority. These include changes to dissents and to at least most concurrences (assuming they don't have precedential force under the Marks rule). Other unobjectionable changes arise pursuant to motions for reconsideration, which allow the Court to exercise its judicial power while still resolving the case before it. Finally, changes of a non-substantive nature don't seem problematic. For instance, Lazarus notes a revision that added the "t" to Justice Stevens's name. That kind of typographical error clearly has no effect on the opinion's basis or precedential force.
For the opposite extreme, imagine that the Court purported to revise a very old decision. Let's say, for instance, that a future Court decided to retroactively revise Brown v. Board of Education in two ways: first, to eliminate the famous and famously controversial footnote to psychological studies indicating that segregation had adverse effects on children; and, second, to add the well-known account of Brown set out in volume 1 of Bruce Ackerman's "We the People" series, which viewed Brown as derivative of the New Deal "constitutional moment." One of these changes is a subtraction, while the other is an addition. But I would be surprised if anyone viewed either of these revisions as legitimate, even if the changes were accompanied by ample public notice and opportunity to comment. The Court's decisions aren't perpetually ongoing works in progress, even though they can be modified through other decisions consistent with judicial practice.
Imposing a temporal limit on the Court's revision power can be justified in many ways. For one thing, there is an important formal objection to excessive use of the revision power. If a relevant justiciable case is necessary to create a particular precedent under Article III, then one would expect that the same standard of justiciability should also be necessary to revise that precedent. This approach ensures that the Court's published statements are always linked to concrete judgments. By contrast, late revisions are necessarily post hoc rationalizations -- much like the journal articles whose views the Court might be adopting. Even if a later-arising justification were in some sense better than the actual justification in terms of its cogency or clarity, the original justification would still be uniquely valuable as a window into the Court's actual, contemporaneous decision-making process. In a sense, preserving original judicial opinions, subject to reconsideration in later, separate precedents, is akin to preserving the original Constitution, with amendments reflected at the end of the document. Of course, there are also pragmatic issues at stake, as major or long-delayed revisions could erode the public's ability to rely on precedent.
In light of the above, I suspect that the basic dividing line between permissible and problematic revisions should be the Court's authority to act in the relevant case. In the normal course, under Rule 45 the Court is divested of its decision-making authority over a matter when the mandate issues (in state cases), or when a certified copy of the judgment is transmitted to the lower federal court. This generally applicable deadline would run on the order of weeks or, if rehearing is requested, months from the original date of an opinion's publication. By contrast, the Court currently appears to embrace a multi-year window for revision before an opinion's publication in the U.S. Reports. In addition to the transparency problems that Lazarus identifies, long-delayed efforts to revise precedent may implicate or even exceed the Court's authority.
The above is cross-posted from Re's Judicata.
Wasn't Ex Parte Quirin just such a circumstance? Not only had the mandate issued but six of the plaintiffs had been executed by the time the extended decision was handed down.
Posted by: Brad | Jun 9, 2014 11:56:44 PM
I don't see the significant practical difference between the weeks or months standard you suggest and the 2-3 years standard currently in place. And I would guess that there is another implicit limitation in the Court's revisions: As far as I know, only the original author of the opinion does revisions.
Posted by: Orin Kerr | Jun 10, 2014 1:17:18 PM
Brad: Thanks for your note. I think that the circumstances of the Quirin opinion are problematic. As Justice Scalia put it, Quirin "was not this Court's finest hour."
Posted by: Richard | Jun 10, 2014 10:05:48 PM
Orin: Many thanks for the comments.
I think that the practical differences are pretty significant. The mandate frequently issues 25 days after opinion announcement, whereas the US Reports can easily take 3 years for finalization. That means that the US Reports can easily take more than 40 times as long to finalize. Moreover, the mandate period is highly predictable, whereas it’s anyone's guess how long this year's opinions will take to be published in the US Reports. Publication schedules vary, as backlogs arise and get resolved. Just imagine a litigant or a judge who wants to know that the Court’s opinion is final. Is it a big deal to wait 25 days? Probably not. But holding out for an undefined period of years is almost surely going to cause a fuss.
Thank you also for the well-taken point about the opinion author apparently being able to limit revisions. For what it’s worth, I tend to think that my Brown v. Board hypos would seem intuitively problematic, even if – many years after Brown – the opinion author had implemented them. Also, I wonder about the basis and bounds of the potential authorial limit. For instance, what would happen if the author has passed away, and the other signing justices wanted to make a change?
Posted by: Richard | Jun 10, 2014 10:19:15 PM
I guess I wonder if there is a real problem that needs solving. On the first point, how often are litigants or judges sitting around waiting to know if Supreme Court opinions are final? My sense is that this doesn't happen because changes are rare and nonsubstantive. If the Court started to introduce major changes in opinions a year later, that would be different. But I don't think that's an issue today.
On the second point, I would think that, as a matter of Court practice, any substantive change would have to be approved by everyone who signed the opinion. Given that the Justices tend to move on to the next case as soon as the old one is out, and they're not particularly eager to make changes if they don't have to, I would think that would sharply limit the kinds of changes that are likely.
Posted by: Orin Kerr | Jun 10, 2014 11:07:05 PM
I wonder if we should or do think differently about revisions to concurrences and dissents rather than the majority opinion. Some of the particularly substantive changes to opinions have been to separate opinions (O'Connor's concurrence in Lawrence, Scalia's dissent in Homer); are there examples of substantive revisions to majority opinions post-mandate? If not, maybe the Supreme Court is already informally following something like the mandate rule for majority opinions.
Posted by: Will Baude | Jun 10, 2014 11:45:58 PM
Orin and Will, Thanks to you both. My unconfirmed sense is that the Court generally adheres to something like the mandate rule I outlined, which is why this issue isn't anywhere near as acute as my Brown hypos. So to a great extent, we are talking about finding principled limits, rather than the solution to an emergency. That said, the principled limits would have real effects. As Brad's comment above indicates, for instance, the mandate rule might shed light on how we view the full opinion in Quirin. It might also impact a number of the examples in Professor Lazarus's piece. For instance, Lazarus suggests that the majority opinion in Clapper might have an error in an important passage, and he shows that courts have already started citing the potentially erroneous language. Now, maybe the Court doesn't view the Clapper point as an error and Lazarus's uncertainty on this issue is unwarranted. But it might also have been helpful to know within 24 days of the Clapper decision that the opinion was final.
Posted by: Richard | Jun 11, 2014 12:17:40 AM