What is the law of the land? It’s harder for the public to find out than it should be. OpenTheGovernment.org and its partners have pushed hard against secret interpretations of the law, calling for Office of Legal Counsel memos, significant FISA court opinions, and more to be made available to the public. An upcoming Harvard Law Review article by Richard J. Lazarus shows that the Supreme Court plays its own role in obscuring the law from the public, detailing how many Supreme Court opinions have been edited and altered after they were issued, largely outside public view.
Some of these edits, Lazarus shows, make significant changes to legal reasoning while others correct factual errors frequently made under the Court’s short deadlines. The road to a final opinion published in the United States Reports is years long and further obscured by the Court’s refusal to make freely available its comprehensive list of edits made to opinions after the fact. While the Court does share the “change pages” with four legal publishers, it denied a request from The New York Times to see them. As Adam Liptak notes in the Times’ article, “The only way the public can identify most changes is by painstaking comparison of early versions of decisions to ones published years later.” Liptak points out that even the final, authoritative versions get buried in the shuffle—the Supreme Court’s own website sometimes posts outdated versions of opinions, while private publishers like Lexis may hold the edited version – for which they charge.
Lazarus makes several recommendations in his examination the Court’s secretive practice, carefully considering the Justices’ need to correct errors both factual and otherwise. He suggests the Court mirror the practices of the other branches of US government: “The Court should provide after-the-fact public notice of any revisions made, just as Congress does in revising its legislation and federal agencies do in correcting errors in regulations.” Every branch of the government makes mistakes and sometimes must revise its decisions. The Supreme Court should follow the example of federal agencies and Congress and make its corrections freely available to the public.
Computer coding has accomplished what the Court has refused to do. David Zvenyach is using computer code and Twitter to notify the public of changes to opinions. Zvenyach's application crawls new court opinions posted on the Supreme Court's website. The application triggers a Tweet on @SCOTUS_servo when it detects a change.
This new tool does not absolve the Court of its responsibility; the public needs clear and public access to its laws and their interpretations. Denying the public access to a current accounting of changes made to opinions while providing access to others who use the information for profit is an unacceptable obstruction of the public’s right to know.