EME Homer and the Problem with the U.S. Supreme Court’s Electronic Publishing

EraserBy now, you’ve all read that Justice Antonin Scalia made a series of mistakes in the dissenting opinion of EPA v. EME Homer City Generation, L.P. The Supreme Court issued a corrected version of the opinion on its website. For more on the story, read the coverage in the WSJ Law Blog, the Volokh Conspiracy, or SCOTUSBlog. They’ll give you the background – this post will discuss publishing implications, and why it’s problematic that the Court doesn’t notify the public when they make revisions to opinions.

Here’s how the Supreme Court’s electronic publishing process works. The first version of the opinion, called the bench opinion, is released in XML format to a handful of publishers (the “Project Hermes” feed). Later that day, a PDF version – the “slip opinion” – is released on the Court’s website. The slip opinions may be further edited, and then the official opinions are published in the bound volumes as citable opinions.

The Supreme Court’s website issues the following disclaimer about the slip opinions found therein:

Caution: These electronic opinions may contain computer-generated errors or other deviations from the official printed slip opinion pamphlets. Moreover, a slip opinion is replaced within a few months by a paginated version of the case in the preliminary print, and–one year after the issuance of that print–by the final version of the case in a U. S. Reports bound volume. In case of discrepancies between the print and electronic versions of a slip opinion, the print version controls. In case of discrepancies between the slip opinion and any later official version of the opinion, the later version controls.

The Court occasionally issues new versions of slip opinions, but they don’t always notify the public when they do so.  Professor Emeritus of Cornell Law School and legal information expert Peter Martin has written about this, noting that most changes are for minor typographical errors. However, there have been instances where a significant change was made:

Far more recent history includes the removal of a lengthy footnote from the majority opinion in Skilling v. United States, 561 U.S. 358 (2010).  The slip opinion file now at the Court’s web site carries no notice of the revision beyond the indication in the “properties” field that it was modified over two weeks after the opinion’s filing date.  To see the original footnote 31 one must go to the CourtListener site or a collection like that of Cornell’s LII built on the assumption that a slip opinion distributed by the Court on day of decision will not be changed prior to its appearance in a preliminary print.

The changes made to Scalia’s dissent in EME Homer were arguably significant. They were also very public. As far as I can tell, it was Law Professor Richard Lazarus who first discovered the error. He blogged about it, it was picked up by national news, and that’s why we know that the change was made. The Supreme Court notified Professor Lazarus of the change, but there is no mention of it on their site. They simply swapped opinions.

Publishers that subscribe to the Project Hermes feed were notified by mail – the old fashioned paper kind – that changes needed to be made to the bench opinions. This is the letter they received. According to sources in this group, this type of notification is unprecedented.

Supreme Court Letter001-1

Take a look at the letter. It mentions five changes to the slip opinion:

  1. Page 7 of Dissent, lines 9-10. Change “where an upwind State contributes pollutants to only a single downwind State” to “where only a single upwind State contributes pollutants to a downwind State.”

  2. Page 12 of Dissent, change title from “D. Plus Ca Change: EPA’s Continuing Quest for Cost-Benefit Authority” to “D. Our Precedent.”

  3. Part I-D of Dissent, lines 10-11, change “is not for EPA or this Court to determine” to “is for Congress, not this Court, to determine.”

  4. Part I-D, line 12, change “EPA has,” to “parties have.”

  5. Part 1-D, line 15, change “EPA’s contention that it could consider” to “the contention that EPA should consider.”

These are not insignificant changes or typographical errors. They affect the interpretation of the opinion – and the Supreme Court quietly swapped the opinions out without notifying the public of the change.

I understand that no one is perfect, and even Supreme Court justices (and clerks) make mistakes. This will always happen, but they should be transparent about it. The courts still operate on an outdated model that assumes all drafts will be edited and bound into a book that will sit on a shelf for hundreds of years. Under this model, simply notifying the publishers is enough.

The reality is that in an electronic world, the public relies on the Supreme Court website to get the opinions. It’s not only lawyers with Westlaw and Lexis subscriptions who read these cases; policy makers, journalists, and everyday citizens are interested in what the Court decides. Slapping a disclaimer on the site to say “subject to revision” isn’t enough when those documents are changed. The Court has a responsibility to let the public know when these changes are made, and treat their electronic versions as seriously as they would the bound volumes.

Professor Martin had this to say about the dissent screw-up:

The Court’s practice of making unannounced editorial changes during the “slip opinion” stage (by substituting replacement files at the court site) presents several problems.  Short term it results in inconsistent versions being held in the diverse legal databases on which lawyers, judges, and citizens rely.  The practice also invites changes that go beyond the simple correction of typos.  Finally, at its core it amounts to an effort to revise the historic record.  The unprecedented letter to the LII and other project Hermes subscribers reveals that risk in its starkest form.  Reaching all the way back to Justice Scalia’s bench opinion, it in effect calls upon recipients to remove any trace of the version he wrote and released, to make it appear that what happened never did.

We have both versions up at Justia (old and new). You also read the modified version of the bench opinion, which includes the changes mentioned in the letter, at the Cornell LII site.

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