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“When we make an opinion, we know that every word we write can have consequences, sometimes enormous consequences,” said Judge Samuel A. Alito Jr. last month. “So we have to be careful with everything we say.”
A fascinating new study of the extraordinary effects of a tiny typo in a Supreme Court ruling nearly a century ago illustrates this.
The error emerged in a documentary report from 1928 shortly after the court announced a decision in a building dispute. It contained a seemingly blanket statement about the constitutional meaning of property rights: “The right of the trustee to dedicate his land to a lawful use is property under the protection of the constitution.”
But the report’s writer, Justice Pierce Butler, hadn’t intended to write “property”. He wanted to say “right”.
Evidence reports are preliminary and can be edited. They will eventually be replaced by the authoritative versions in hardcover books.
The court eventually corrected the mistake, and this is the final version of the opinion published in book form in the United States Reports: “The Trustee’s right to use his land is properly protected by the Constitution.”
Although the opinion was changed, the court did not draw attention to the change and the correction went unnoticed in large parts of the legal world.
The wrong version of the statement has appeared in at least 14 court decisions, the last of which was issued last year; in at least 11 appeal briefs; in a Supreme Court argument; and in books and articles.
Michael Allan Wolf, a law professor at the University of Florida who discovered the mistake and traced his story in the new article scheduled for publication in the Washington University Law Review, said it was the worst typo.
“It’s a real word,” said Professor Wolf in an interview. “It makes sense in context. And it changes the meaning. “
He said it was impossible to know if the false statement affected the outcome in the cases the judges examined or cited it.
“We’ll never know the answer to that,” he said, “although we have judges who prefer private landowners at the expense of the government, I think that could be more than the icing on the cake.”
Overall, however, according to Professor Wolf, the often-cited mistake has contributed to strengthening a view of property rights.
“It gave the private property rights movement an additional argument,” he said. “And almost every time they were very successful in promoting new theories. And that’s a big one because it supports the almost common notion that you have the right to do the sensible things on your property. “
“It doesn’t work that way,” he said. “The way it works is that the government has the right to reasonably restrict the use of your property. I know it’s subtle, but that makes a big difference. “
The typographical error of 1928, wrote Professor Wolf, had “produced a legacy of misrepresentations” and led to “a rule of error”.
The court’s now abandoned practice of editing its reports after publication without public notice has long been the subject of internal criticism.
What you should know about the Supreme Court tenure
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A blockbuster runtime begins. The Supreme Court, now dominated by six Republican MPs, returns to the bank this fall to begin a significant tenure in which it will consider abolishing the constitutional right to abortion and massively expanding gun rights.
The big abortion case. The court appears poised to challenge a Mississippi bill that bans most abortions after 15 weeks to get Roe v. Wade, undermining and possibly overturning the 1973 decision establishing a constitutional right to abortion. The ruling could effectively end legal access to abortion for those living in much of the South and Midwest.
An important choice for guns. The court will also review the constitutionality of a long-standing New York law that severely restricts guns being carried outside the home. The court has not issued a major ruling under the second amendment in more than a decade.
A decline in public support. Chief Justice Roberts now heads a court that is increasingly being associated with partiality. Recent polls show that following a spate of unusual late summer judgments in politically charged cases, the court is suffering a sharp drop in public support.
In 1984, in writing to Chief Justice Warren E. Burger by a court clerk, “we are actually operating a system” by making “a significant number of corrections and drafting changes to the court’s judgments after they were announced and before they were published in the US reports make “. this completely contradicts the general publication practice. “
In an internal memorandum from 1981, Judge Harry A. Blackmun said the court operates “on a strange and ‘reverse’ basis, with professional handling after the first public publication”.
Nowadays the Supreme Court is much better at making its mistakes public.
This is a consequence of changes the court introduced in response to a 2014 article by Richard J. Lazarus, a Harvard law professor, which revealed that judges had long since revised their opinions without public notice, and sometimes legal ones Changed or withdrawn conclusions.
Since 2015, the court has noted revisions on its website. For example, of the 22 decisions made in June on argued cases, eight had to be revised, resulting in 30 separate changes.
Opinions in Fulton v Philadelphia, a major gay rights and religion decision made in June, were changed three times to make 10 changes. Most of them agreed with Judge Alito.
Professor Lazarus called the new transparency of the court a welcome development, adding that the extent of the revisions was a good sign.
“They do much better to be willing to admit their mistakes,” he said of the judges. “Indeed, the fact that they have to acknowledge them probably makes them more cautious. I think more mistakes would be made if they didn’t acknowledge them. “
However, errors in legal databases and other secondary materials can remain uncorrected. In an April immigration case, Judge Neil M. Gorsuch first wrote that the government must provide some immigrants with “a single complaint document explaining what it intends to do and when.” The next day he revised the sentence because he wanted to write a “compliant document”.
However, the error lives on in the online archives of the Legal Information Institute at Cornell Law School and in a summary description of the case on Lexis, a legal database.