Fordham Law


Scalia Correction Exposes High Court's Transparency Problem

Thomas H. Lee in Law 360, May 06, 2014

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The U.S. Supreme Court's quick and silent revision to a high-profile environmental opinion last week revealed the court's secretive approach to correcting mistakes, a process that legal experts say shields the court from accountability by keeping the changes hidden from public view.
 
The high court acted with speed and discretion last week after learning that Justice Antonin Scalia had made an embarrassing error in a Clean Air Act dissent by misquoting his own 2001 opinion, quickly scrubbing the mistake from the official record without any public acknowledgment of the change.
 
When a U.S. Supreme Court Justice makes a mistake, he or she has no duty to inform the public. The court places notice at the top of all its opinions that the text is subject to revision before being published in the official U.S. reports months or years later, but maintains no record of any edits. It's a system that should be far more transparent, according to Cornell Law School professor emeritus Peter W. Martin, who co-founded the school's legal information institute more than two decades ago.
 
"There are some courts that do it right, in my judgment," Martin said. "They have, in this day and age, decided having a bound book that comes out years after the fact no longer makes sense."
 
The Supreme Court isn't one of the courts that has elected to make electronic versions the official decision of record, stubbornly holding on to an outdated tradition that makes it difficult, if not impossible, for the public to know when and how the court makes changes to opinions, experts say.
 
Many courts across the U.S., including some federal appeals courts, issue a separate order letting the public know that they have revised a decision. There's no such process in place at the Supreme Court, which University of Denver law professor Nancy Leong said leaves the public largely unaware of any changes made after the decision is first posted online.
 
"I think it's a problem," Leong said. "I think it raises open-government concerns and transparency concerns."
 
Revisions to Supreme Court opinions are much more common than people believe, according to Leong. Although they are mostly typographical or grammatical errors, they can sometimes have a significant impact on the opinion, she said.
 
Last week, Justice Scalia erroneously wrote that the U.S. Environmental Protection Agency had previously tried and failed to use cost as a factor in developing air pollution regulation, but was shot down by the high court in the 2001 decision in Whitman v. American Trucking Associations Inc.
 
It was the trucking group rather than the EPA, however, that had actually wanted costs included. That section of the dissent originally referenced the EPA's "continuing quest for cost-benefit authority." There was never any such quest in the run up to the agency's Cross-State Air Pollution Rule, at least not the one laid out in Justice Scalia's dissent.
 
Justice Scalia isn't the only one to have made a mistake in a Supreme Court decision, as Justices Anthony Kennedy and Clarence Thomas have been called out for errors in recent years. But no one is likely to hear about these mistakes unless they are discovered and discussed independently, according to experts.
 
The Justice Scalia error was flagged by Harvard Law School professor Richard Lazarus a few hours after the decision was issued last Tuesday, and later written about by environmental law bloggers and news outlets, including Law360. By Tuesday evening, the court had replaced the original opinion with a revised version that correctly attributes the pro-cost consideration position to American Trucking.
 
The original opinion disappeared from public view, and anyone who didn't download the decision within the first 12 hours or so would have never known that there ever was a mistake. The court prefers not to admit publicly that it has made mistakes, according to Leong.
 
"There's not even transparency about why there's no transparency," Leong said.
 
Supreme Court Public Information Officer Kathleen L. Arberg told Law360 that technical changes are routinely made to opinions after they are released. Substantive changes also occur, although they are less common. Arberg would not say how many of these edits have occurred recently or even confirm that the Supreme Court keeps track of the changes.
 
The court's response is part of its strategy to avoid public humiliation, according to Boston College Law School professor Zygmunt J.B. Plater.
 
"There are very few embarrassments that are laid at the door of the Supreme Court, and when one happens like this, it's corrected very quickly," Plater said. "I'm sure the management of the court hopes it's significantly technical and low-profile to escape public scrutiny."
 
Justice Scalia may not have helped himself in this case. Including sharp criticisms against both the EPA and the majority — writing, "The majority reaches its result ('Look Ma, no hands!') without benefit of text ..." — Justice Scalia's mistake is particularly embarrassing, experts say.
 
"By surrounding the mistake with bombast, he really made it a terrible blooper," Plater said.
 
Nevertheless, anyone accessing the opinion now would never know that Justice Scalia made the error.  But reporting on these kinds of incidents would help humanize a court that often views itself as sacred, Plater said.
 
"In a sense, [the court] shepherds this kind of Olympian characterization of itself," Plater said. "Moments like this are cracks in Mount Olympus."
 
As a former U.S. Supreme Court clerk for Justice David Souter in 2001, Fordham University law professor Thomas H. Lee said he was torn about the court's revision process. The confidentiality rules can help foster open debate, but may not best serve the public or the high court.
 
"The problem is the court has become so polarized that I'm not sure the tone of secrecy is producing the kind of deliberation that was the intent," Lee said.
 
The Supreme Court is much more secretive than some of the appeals courts, but it's an institution that makes its own rules and can essentially do what it wants, Lee said.
 
Now that Justice Scalia's mistake has become public, however, the court has to be embarrassed and might be more sensitive to the transparency issue, according to Martin. But that doesn't mean reform will come easy.
 
"There's an awful lot of inertia in how that court does its business and there is an awful lot of ego bound up under many of those robes," Martin said.