Harvard Law Review
Does it matter whether and how the Supreme Court corrects its mistakes?
The Court, of course, does make mistakes; we all know that the Justices are infallible only because they are final, and not the other way around. It could hardly be otherwise. The Court has a shockingly small support staff, quite unlike the vast bureaucracies that surround the legislative and executive branches of government. It nevertheless produces, each year, a completely new and enormous written body of work; operates under tight and near-absolute (albeit self-imposed) deadlines; and issues almost all of its most important and controversial decisions more-or-less simultaneously during a very narrow period in the late spring, just as it is rushing to recess for the summer so that the Justices can begin their vacations and European teaching gigs. Many of the Court’s lower-profile cases, meanwhile, are hard to understand, are decided unanimously (and hence with less rigorous scrutiny), involve technical subjects and abstruse terminology that are unfamiliar to the Justices, and thus sometimes make the eyes glaze over. It would, accordingly, be astonishing if errors and inapt turns of phrase did not find their way into the Court’s opinions.
It also should come as no great surprise that the Justices — or, in any event, the Court’s staff — invest much energy in correcting those errors. It would be intolerable were the decisions of the nation’s highest court to contain for all time such embarrassing errors as, for example, misspellings of the Justices’ names or manifest misstatements of historical fact; we expect the Justices to know who was President of the United States in 1799. Professor Richard Lazarus’s revelatory description of the history of these often-unnoticed errors and associated corrections is fascinating, but it is hard to get too worked up over the precise mechanics by which the Court’s Reporter changes “capitol” to “capital.” If that were all there is to the problem of the “non-finality” of the Court’s decisions, it would be easy to understand why Lazarus’s article is the first time in two centuries that the problem has attracted sustained attention.
But then Lazarus recounts a remarkable anecdote. When he was a young lawyer working in the Solicitor General’s office at the U.S. Justice Department, the Court decided the significant Clean Water Act (CWA) case International Paper Co. v. Ouellette. As originally issued in a slip opinion, Justice Powell’s opinion for the Court in Ouelette contained the line: “The CWA also provides its own remedies, including civil and criminal fines for permit violations, and ‘citizen suits’ that allow individuals (including those from affected States) to compel the Environmental Protection Agency (EPA) to enforce a permit.” This language, however, troubled the EPA, as the circuits were then divided on whether citizen suits were in fact available to compel EPA action and the matter had not yet been settled; the EPA, presumably, did not want to be subject to such suits.
Accordingly, Lazarus — who had written the brief for the United States and the EPA as amicus in Ouellette — wrote a letter to the Court’s Reporter on behalf of his clients explaining that the availability of citizen suits to compel EPA enforcement had not yet been finally decided and urging deletion of the offensive language from the Court’s opinion. The letter made its way to Justice Powell, who obliged the young Lazarus: the language approving citizen suits to compel EPA action was omitted from the final opinion as it appears in the U.S. Reports.
For someone who practices in the Court, this account is eyebrow-raising, and more than a little disturbing.
Picture: Jarek Tuszynski / Wikimedia Commons, via Wikimedia Commons