The recent, rather high-profile mistake and correction by Justice Antonin Scalia in a dissenting opinion raises the question of how the process of publishing decisions – and correcting them – works at the Supreme Court.  The answer centers on an office little known outside the Court, the Reporter of Decisions.

The small office with only eleven employees is responsible for technical editing, proofreading and cite-checking all of the Court’s opinions, writing the syllabi that summarize the decisions and accompany their release, and preparing the opinions for final publication.

Most of the time, these functions are performed out of the limelight, taken for granted by readers of the Court’s output.  Only the most careful readers of fine-print notices would know that the  Reporter of Decisions is mentioned twice in each Supreme Court opinion.  The first reference is in very small type at the top of the syllabus – which, the notice proclaims, was prepared by the Reporter of Decisions and is “no part of the opinion of the Court.”  The second reference appears (in equally tiny type) at the top of the first page of the lead opinion, declares that the decision is subject to revision before it is finally published in the bound volumes (known as the U.S. Reports), and invites notification to the Reporter of Decisions of any errors found by readers.

And out of the limelight is exactly the way the Reporter of Decisions likes it.  The holder of the office rarely grants interviews and only occasionally gives speeches describing the work.  In 2010, Frank Wagner retired after more than twenty-three years as the Reporter of Decisions and was succeeded by his deputy, Christine Fallon.  Wagner shed some light on the workings of the office in a speech in 2012 and interviews with the National Law Journal when he retired.

The work of the Reporter of Decisions, and the story of correcting Justices, should be of interest to students in Supreme Court seminars and others who closely follow the institutional functioning of the Court.

Most of the work of the office is done in secret, in the secure confines of the Court building in a first-floor office past the security gates that require a code to open.  This work includes correcting the occasional gaffe by a Justice, as in the most recent case of Justice Scalia.

The controversy began shortly after the Court’s April 29 announcement of its decision in Environmental Protection Agency (EPA) v. EME Homer City Generation, L.P.  In an opinion by Justice Ruth Bader Ginsburg, the Court upheld EPA’s rules designed to control pollution that is generated by power plants in one state but moves across the borders and causes harm in another state. The vote was six to two; Justice Samuel Alito did not participate in the case, while Justice Scalia filed a dissenting opinion that was joined by Justice Clarence Thomas.  Justice Scalia felt so strongly that EPA was regulating in a way that was inconsistent with the clear meaning of the federal Clean Air Act and that the regulations should be struck down that he read portions of his dissent in the courtroom that morning.

Later in the day on April 29, however, legal bloggers and other Supreme Court watchers began to discuss an embarrassing mistake in Justice Scalia’s dissent.  In a paragraph on page twelve of the twenty-one-page dissent, Justice Scalia’s opinion said, “This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation.”  He then cited what he described as EPA’s similar position in a 2001 case, Whitman v. American Trucking Associations, Inc.  The problem is his characterization of EPA’s position in the 2001 case was inaccurate; on the contrary, EPA argued against the industry’s stand that air pollution regulations should be limited to reflect cost-effectiveness. Moreover, the unanimous 2001 ruling in which the Court agreed with EPA that the agency was not authorized to take cost-effectiveness into account was written by Justice Scalia himself.

It may be years before we know how that mistake occurred in Justice Scalia’s chambers, whether it was the Justice himself who wrote the erroneous language or whether a law clerk messed up. But we may never know.  We also may never understand why no other Justices caught the error if, as would normally be the case, the dissent was circulated to the Justices’ chambers before the decision was released to the public.

What we do know is that by the next day, April 30, the posted, online version of the opinion had been changed. The subheading had read, “Plus Ça Change:  EPA’s Continuing Quest for Cost-Benefit Authority.” The new version simply stated: “Our Precedent.” And the text was changed to say, “This is not the first time that parties have sought to convert the Clean Air Act. . .” using parties instead of EPA.

How did this change come about?  Needless to say, no one at the Court will discuss it.  But the most likely scenario is that when Justice Scalia and his clerks and staff became aware of the error, they alerted the Reporter of Decisions and sent revised text to replace the original language.  That text was then proofed by the staff of the Reporter of Decisions and inserted into the opinion, which was then reposted by the Court’s Publications Unit.  It is possible, but less likely, that the first news of the error came directly to the Reporter of Decisions, who then alerted Justice Scalia’s staff.  That office does receive suggestions for error correction from readers of Court opinions.  According to former Reporter Frank Wagner, the office is contacted between ten and twenty times each year, although he said many of the notifications do not actually merit corrections.  Wagner also said that when the corrections are substantive rather than technical, the process is usually initiated by the Justices and their staffs.

There are other parts of the process about which little is known. For example, would Justice Scalia have circulated the changes to the other Justices before they were posted?  Justice Scalia would almost certainly have had to notify Justice Thomas, who joined the dissent.  Notification of the change to the rest of the Court seems likely, as well, although this was not a case in which the change would have required any response from other Justices.

This is not the first time that opinions of the Court have undergone substantive corrections, but some others have not attracted the attention that Justice Scalia’s did.  Nearly thirty years ago, then-Chief Justice Warren Burger took a swipe at the news media in a separate opinion in the case of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., attributing the statement that “too much checking on the facts has ruined many a good news story” to a Scripps-Howard editor, Roy Howard.  In December 1985, six months after the decision was issued and after Chief Justice Burger was admonished by the estate of Roy Howard that the editor had never written those words and would not have agreed with the sentiment, Burger’s separate opinion was changed to remove the attribution.

In 2008, Justice Anthony Kennedy made a high-profile correction to the Court’s decision in Kennedy v. Louisiana, in which the Court – by a vote of five to four, held that a state may not impose the death penalty for the non-fatal rape of a child.  Justice Kennedy’s decision indicated that in thirty states and under federal law, the death penalty was not allowed for the rape of a child that did not result in death.  But he was subsequently informed that a two-year-old federal law did in fact permit the death penalty for child rape in military justice cases.  When the original opinion was modified three months later, Justices Thomas and Alito voted to grant a petition to rehear the case; this, in turn, prompted short separate opinions by Justices Kennedy and Scalia explaining that the mistake did not necessitate rehearing.

And just last spring, Justice Thomas corrected a scientific term in his decision on gene patenting, Association for Molecular Pathology v. Myriad Genetics, Inc. The original version referred to “composite DNA” as “cDNA.”  But science bloggers pointed out that the proper term for cDNA was “complementary DNA,” and the reference was corrected in the first paragraph of the decision.

In each of these cases, it was the Reporter of Decisions who handled the mechanics of the corrections, always in consultation with the Justices, but always determined to make sure the Court gets it right.

Posted in Kennedy v. Louisiana, Environmental Protection Agency v. EME Homer City Generation, Association for Molecular Pathology v. Myriad Genetics, Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Correcting the Supreme Court, SCOTUSblog (May. 16, 2014, 4:30 PM), http://www.scotusblog.com/2014/05/scotus-for-law-students-sponsored-by-bloomberg-law-correcting-the-supreme-court/