SCOTUS Confronts ‘Line-Standing,’ Secret Changes to Opinions

The court’s policy changes, announced Monday, respond to public complaints.

People wait outside the U.S. Supreme Court the week a decision in the same-sex marriage case Obergefell v Hodges is expected.  June 22, 2015.  Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.
People wait outside the U.S. Supreme Court the week a decision in the same-sex marriage case Obergefell v Hodges is expected. June 22, 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

October 5, 2015 by Tony Mauro and Marcia Coyle, The National Law Journal

The U.S. Supreme Court announced Monday a series of policy changes that respond to public complaints about secret changes to the justices’ decisions, hiring “line-standers” for high-profile oral arguments and “link rot” in the court’s rulings.

The announcement, which brought mixed reviews, came on the first day of the court’s fall term, and may reflect policy changes developed over the summer and discussed at the justices’ long postsummer conference on Sept. 28.

The announcement said that for the first time, changes or “edits” made to court opinions after they are handed down will be made apparent on the court’s website.

According to the release from the court, the edits will be “highlighted” on opinions as they appear on the court’s site, along with the date of the change. The date of any revision will be listed in a new “Revised” column on the charts of opinions, in-chambers opinions, and opinions related to orders under the “opinions” tab on the website.

“The location of a revision will be highlighted in the opinion,” the court’s announcement said. “When a cursor is placed over a highlighted section, a dialog box will open to show both old and new text.”

The move appears to be a direct response to a 2014 Harvard Law review article on the “nonfinality” of court opinions. In the article, Harvard Law School professor Richard Lazarus revealed that changes, some of them substantial, were being made to already issued opinions without notice to the public. Lazarus is a longtime friend of Chief Justice John Roberts Jr.
Lazarus on Monday called the new policy “certainly a very welcome step by the justices to correct a practice that had persisted for far too long.

“The justices’ desire to correct past mistakes in slip opinions was always commendable. Now their candor in being willing to acknowledge their mistakes and the need for their correction is equally commendable,” Lazarus said.

But Lazarus cautioned that the court’s new policy “stops short of making transparent the changes made between the slip opinion and the final bound volume of the U.S. Reports. To address that problem, the court needs to make publicly available the changed pages that are used in publishing the final bound version of the court’s opinions.”

After Lazarus’ article was published, changes made to fix errors in opinions by Justices Antonin Scalia and Ruth Bader Ginsburg made headlines, and Ginsburg proactively alerted the public when changes were made.

Meantime, a Twitter account called @SCOTUS_servo was set up to make opinion changes public through a process that periodically swept opinions published online. David Zvenyach, who created the Twitter feed, said Monday: “They didn’t go all the way, but it is great news. I can’t wait to shut down SCOTUS Servo.”

The long wait

The announcement Monday also addressed a sore point for many members of the Supreme Court Bar who show up at the crack of dawn, hoping to get a seat inside the courtroom for high-profile arguments. Instead they find themselves in the back of the bar line because a “line stander”—often highly paid—is holding another member’s place.

Under the new procedure, only bar members who plan to attend arguments will be allowed in the line for the bar section, both inside and outside of the court building. The Supreme Court Bar check-in process usually begins at 8:30 a.m., but lines may form in advance on the plaza in front of the building. Bar members on the inside line are required to show the clerk’s assistant a photo identification card and each name is checked against the bar membership roster.

The rule against line standers outside the court building will be self-enforced, said a court spokeswoman.

Members of the Supreme Court Bar generally applauded the end to “line standers” but some also felt the justices did not go far enough to make changes.

“I think it was an unseemly practice, and I’m glad the court brought it to an end,” said veteran high court advocate Kannon Shanmugam of Williams & Connolly. “The other changes are welcome ones, too: They promote transparency and reflect the realities of litigating and judicial decision-making in the digital age.”
Judith Schaeffer, acting president of the Constitutional Accountability Center, admits that she has used a line stander, but only once—for the same-sex marriage arguments.

“My reaction as a bar member is that the court really should take a step back and consider what has brought the court to this step,” she said. “To me, it’s a very simple fact that many Americans as well as bar members are deeply interested in proceedings of the court. There is a very simple solution—live audio or preferably live video.”
Schaeffer noted that live audio of arguments are broadcast into the court’s lawyers’ lounge. “There’s no legitimate reason for the court not to share that with the public,” she added. “It doesn’t require new technology or cameras—just somebody with authority to turn that switch on. For the court to take a step like this instead of dealing with the real issue is mindboggling to me.”

Combating ‘link rot’

The court also announced new procedures to confront “link rot,” the phenomenon where web-based links that are included in court opinions disappear or become broken, making it difficult for scholars and others to recover materials that were pertinent to court decisions. A 2013 study by Harvard scholars including presidential candidate Lawrence Lessig found that 50 percent of links in Supreme Court opinions do not link to the originally cited information.
According to Monday’s announcement, the court’s office of information technology, its library and the reporter of decisions collaborated to arrive at a solution for link rot.

Web-based content included in court opinions beginning with the 2005 term forward will be made available on the court’s website. Hard copies of the materials will continue to be retained in the case files by the clerk’s office, the announcement stated.

“The high court policy updates on link rot, opinion edits and line-standing demonstrate that the justices pay attention to what’s being written about them and that they have the capacity to make institutional changes that reflect modern times,” Gabe Roth of Fix the Court, which advocates for greater Supreme Court transparency, said Monday. “Yet while these reforms may be useful to a handful of court-watchers, they do little to make the institution more open and accessible to the rest of the American public who deserve to see their public officials in action.”