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U.S. Supreme Court

SCOTUS decisions are works in progress; revisions are sometimes made years later, study finds

Posted May 27, 2014 7:51 AM CDT
By Debra Cassens Weiss

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Recent flubs by Justices Elena Kagan and Antonin Scalia resulted in quickly made changes to U.S. Supreme Court opinions.

But not all changes to Supreme Court opinions are as fast or as well-publicized. A new study by Harvard law professor Richard Lazarus has found that the Supreme Court sometimes revises opinions years after they are issued without notifying the public, the New York Times reports.

In some instances, the court makes “truly substantive changes in factual statements and legal reasoning” after publication of the initial opinion, Lazarus says.

The court does provide a warning on each opinion as it is released that it is “subject to formal revision before publication.” But the court rarely announces when and what changes are made. Sometimes the final version of a court opinion is not published until five years after the initial decision is released. And sometimes the court’s own website has the older version.

The Times offers an example of an unnoticed change in a concurrence by Justice Sandra Day O’Connor in Lawrence v. Texas, which struck down a Texas law banning homosexual sodomy. O’Connor originally wrote that Scalia “apparently agrees” that the Texas law could not be reconciled with the court’s equal protection principles. The statement didn’t make it into the final version of the opinion, though some law professors had used it in teaching the case.

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