The Marble Palace Blog: Yes, Justices Make Mistakes

Thank you for reading The Marble Palace Blog, which I hope will inform and surprise you about the Supreme Court of the United States. My name is Tony Mauro. I’ve covered the Supreme Court since 1979, and for American Lawyer Media since 2000. I semi-retired in 2019, but I am still fascinated by the high court. I’ll welcome any tips or suggestions for topics to write about. You can reach me at [email protected].

In 2015, the Supreme Court took a small step toward transparency. It announced that when so-called “slip opinions”—the first version of Supreme Court opinions—are released to the court’s website and then subsequently found to have errors or need revisions, those changes would be made public.

The surprising move was undoubtedly the result of a Harvard Law Review article exposing the “nonfinality” of Supreme Court decisions. Harvard professor Richard Lazarus, a longtime friend of Chief Justice John Roberts Jr., authored the article. It turns out that for decades, justices have made unreported adjustments to opinions. Who knew?

Since the court’s announcement, a scattering of bloopers has been made public on the court’s website. (See the column titled “revised.”) One change turned “offers” to “confers.” Another time, a reference to a female judge was hastily changed from “him” to “her.” Justice Stephen Breyer, a Francophile, must have been embarrassed to misspell “laissez faire” as “lassez faire.” Justice Clarence Thomas referred to a painter’s “palate,” when “palette” was the correct word.

In a July 1 ruling titled Brnovich v. Democratic National Committee, a change had to be made. Justice Elena Kagan dissented from the decision in the case, which dealt with the Voting Rights Act. She asserted that the majority undermined Section 2 of the law and went on to sketch the long history of voting rights, including the 1965 protest at Selma, Alabama.

But she—or her law clerks or the reporter of decisions—wrote in the dissent that the protest march went from Selma to Birmingham, Alabama, when in fact the destination was Montgomery, Alabama. The little-noticed error was fixed and made public July 21.

Supreme Court scholar David Garrow, whose book “Protest at Selma” was cited by Kagan in the dissent, said the error was surprising because judging from the rest of the dissent, it seemed that “whichever clerk wrote this must have read the entire shelf of books on the Voting Rights Act.”