Supreme Court Decisions Are All Just Works In Progress

I was surprised to read this weekend that the Supreme Court justices often continue tinkering and changing their opinions long after they are published. According to the New York Times, these changes can be substantive and edits have been made as long as five years after the fact.

The temptation to edit and correct can be overwhelming, so the justices have my sympathy. Having said that, the Court does not release its decisions until all are on board, so presumably each voting member has parsed the issues and come to his/her final conclusion (and edited, revised, etc., at great length) prior to publication. I don't have several law clerks fresh from the finest law schools in the country drafting and proofing for me, but I still take care that my briefs say what I intended to say.

But it's not the post hoc editing that bothers me; it's the utter lack of transparency. The edits are done silently, without notice or acknowledgement, and without any indication as to what was done by whom and with what authority. If there's an inadvertent mistake that needs to be corrected, that's one thing. Changing the meaning or import of a decision is entirely different. Appellate procedures are governed by precise rules, and these ought to apply here. If the Court wants to revisit it's own decisions, it has to do so in a manner authorized by rule and apparent and announced to the public.

Surely (hopefully?) the NY Times article is just the beginning of an inquiry into this practice.