Supreme Court’s Greater Revision Transparency Gets Little Notice

The US Supreme Court last year quietly rolled out a new approach to opinion revisions that transparency advocates applauded.

The justices have long revised opinions before their final publication, which can happen years after being handed down. Though the process has varied over the years, the edits weren’t preserved in the United States Reports.

But since March 2023, those changes are will now be noted permanently in the final versions. According to the court’s web page, the revisions will be reflected in cases going back to the term that began in October 2021.

It’s a rare increase in transparency for an institution that’s faced public pressure to be more open about how it operates.

“It’s a good idea to make these changes public in a durable way,” said attorney Jack Metzler, who found and published the Supreme Court’s private style manual.

Reporter’s Note on changes to Acheson Hotels, LLC v. Laufer, decided Dec. 5, 2023.

Kimberly Robinson/Bloomberg Law

Totally Understandable

The change and its implications have gone largely unnoticed, even by those who closely watch the court and its opinions.

Like Metzler, Gabe Roth, who heads the Supreme Court watchdog Fix the Court, was unaware of the change. But Roth said it isn’t unusual for the court to have what he referred to as a “soft landing” when it comes to certain changes.

With regard to revisions, Roth said the justices write thousands of pages every term, so a few typos are totally understandable.

“We want this level of transparency at the Supreme Court,” he said.

Zero Notice

That, however, hasn’t been the case for most of the Supreme Court’s history.

Decisions listed on the court’s opinions page do conspicuously note that they are “subject to formal revision before publication in the United States Reports.”

A notice appears at the beginning of the court’s decision Truck Insurance Exchange v. Kaiser Gypsum Co., decided June 6, 2024.

Kimberly Robinson/Bloomberg Law

Since the justices’ early days, changes have ranged from typographical ones to substantive revisions about the law and facts, according to a 2014 law review article by Harvard Law School professor Richard Lazarus.

Until recently, “the Court was stunningly nontransparent about changes made,” Lazarus said in an email. “There was zero notice anywhere, which was extraordinarily misleading and not befitting of the Court.”

Shortly after Lazarus’ article, the court began linking revised opinions on its webpage.

Supreme Court’s opinions page, noting revisions to three cases as of June 10, 2024.

Kimberly Robinson/Bloomberg Law

The revision notes the number of changes made and highlights where they appear in the opinion.

For example, the court on June 6 decided bankruptcy case Truck Insurance Exchange v. Kaiser Gypsum Co. The next day, the opinion was revised to twice change the word “uninsured” to “insured.”

With the court’s latest change to its revisions procedures, revised versions eventually get dropped from the court’s opinion page, and instead are reflected in the preliminary version of the United States Reports.

Metzler said the removal of the revised link from the opinion page is “slightly less convenient” because it isn’t as obvious.

Ultimately, he said, “for posterity, this is better.”