This morning, Adam Liptak reported at the New York Times that the Supreme Court has been quietly editing its legal decisions without notice or indication. According to Richard J. Lazarus, a law professor at Harvard Liptak interviewed about a new study examining the issue, these revisions include “truly substantive changes in factual statements and legal reasoning.”
The court does warn readers that early versions of its decisions, available at the courthouse and on the court’s website, are works in progress. A small-print notice says that “this opinion is subject to formal revision before publication,” and it asks readers to notify the court of “any typographical or other formal errors.”
But aside from announcing the abstract proposition that revisions are possible, the court almost never notes when a change has been made, much less specifies what it was. And many changes do not seem merely typographical or formal.
Four legal publishers are granted access to “change pages” that show all revisions. Those documents are not made public, and the court refused to provide copies to The New York Times.
The Supreme Court secretly editing the legal record seems like a big deal to me. (Lawyers, professors, court reporters, tell me I’m wrong!)
To me, this story highlights the need for and, eventually the use of data and software to track the changes in a public, online record of Supreme Court decisions.
Static PDFs that are edited without notice, data or indication of changes doesn’t seem good enough for the legal branch of a constitutional republic in the 21st century.
Just as the U.S. Code, state and local codes, are being constantly being updated and consulted by lawyers, courts and the people, the Supreme Court’s decisions could be published and maintained online as a body of living legislation at SupremeCourt.gov so that they may be read and consulted by all.
Embedded and integrated into those decisions and codes would be a record of the changes to them, the “meta data” of the actions of the legislative organ of the republic.
What you’ll find now at SupremeCourt.gov is a significant improvement over past years. Future versions, however, might be even better.
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