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A Supreme 'oops' [Commentary]

The legal blogosphere was buzzing last month with the discovery of a major gaffe in a Supreme Court decision that had just been released. What attracted all the attention was not so much the substance of the error — misrepresenting the position of the Environmental Protection Agency in a case decided in 2001 — but its source: Justice Antonin Scalia, the author of the court's decision in the 2001 case.

I know from personal experience, mistakes can happen, even at the highest court of the land.

Decades ago, I had the dream job of every young lawyer: clerking for a justice of the Supreme Court. On the morning a decision authored by my boss, Justice Byron White, was scheduled to be released, I gave it a final reading. I was horrified to discover that it contained a footnote citing a decision the court had not yet released. I had included the footnote in anticipation that the other decision would be released months before ours, but instead its release had been delayed. As a result, we were about to reveal to the world the outcome of a case before its release had been approved by the court.

Terrified that I might be fired, I scurried into Justice White's office and informed him of the error. In the days before computers, the court used its own "hot type" printing press. I knew that deleting the footnote, resetting the type and reprinting copies of the decision was not physically possible in the short time before the court was scheduled to announce it. To my eternal relief, Justice White simply responded, "we'll just have to pull the decision." Rather than blaming me for the mistake, he expressed relief that we had narrowly averted an embarrassing gaffe.

Justice Scalia was not so lucky, but he can take comfort in the fact that other justices' opinions have contained mistakes that had to be corrected after their decisions were released. This is confirmed by information in the papers of the late Justices Thurgood Marshall and Harry Blackmun.

In 1983, a last minute vote switch by Chief Justice Warren Burger changed the result in a 5-4 decision authored by Justice William Rehnquist concerning when court-awarded attorney's fees were "appropriate." Rehnquist hurriedly converted his draft dissent into a majority opinion, but he forgot to change a footnote criticizing "the Court" for what he called a "truly radical departure from American and English common law." When the decision was released, the footnote made it look like he was criticizing himself because he now was the author of the majority opinion. Keen observers quickly — and correctly — surmised that a last-minute vote switch had changed the result in the case. Justice Rehnquist crafted an elegant solution for this gaffe: He simply inserted the words "of Appeals" after "the Court" so that his criticism appeared to be directed at the lower court the Supreme Court was reversing.

A couple of years earlier, Justice Rehnquist realized — three months after a 1981 decision was released — that he had misstated the legal test he thought should apply for determining what Congress can regulate under its commerce power. He asked the other justices for permission to rewrite a sentence in his opinion concurring in the judgment. Rehnquist joked that if permission was not granted, he would tell the world how Justice Thurgood Marshall made him look bad through a post-release deletion of a paragraph in a 1974 decision he had criticized. The justices agreed to let him make the change.

Today errors are easier to correct electronically — Justice Scalia's was corrected in less than 24 hours when a new version of his dissent simply appeared on the court's website. But it required him not only to rewrite a sentence of his dissent, but also to change the title of an entire subsection that had accused the EPA of continually seeking to stretch its authority. Compounding the error was that Justice Scalia had been so upset with EPA, and the court majority that upheld its regulations, that he had read his dissent from the bench to draw more attention to it.

Perhaps the real story here is that, rare as such errors are at the country's highest court, even the justices who are surest in their views can benefit from proofreading their opinions one more time.

Robert Percival is the Robert F. Stanton Professor of Law and director of the Environmental Law Program at the University of Maryland Francis King Carey School of Law. He can be reached at rpercival@law.umaryland.edu.

To respond to this commentary, send an email to talkback@baltimoresun.com. Please include your name and contact information.

Copyright © 2015, The Baltimore Sun
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