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Sunday, May 25, 2014

The ever-moving goalposts

The US Supreme Court has long made a habit of post-opinion editing:
The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law. They have also retreated from descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case....

After-the-fact editing is not a new phenomenon. “The current court did not begin this practice, which finds its origins in the court’s earliest days and has extended to all justices over the years, liberal and conservative, but the court today can take the steps to correct it,” Professor Lazarus said. “Easy to do, and long overdue.”

The court seems to have been even more freewheeling in the past. Chief Justice Roger B. Taney added approximately 18 pages to his 1857 majority opinion in the Dred Scott decision after it was announced.
My police friends told me long ago that there is no such thing as a "law-abiding citizen", that the traffic laws were explicitly written to permit them to exercise their judgment and pull over anyone, at any time. But it's interesting to see that virtually no one has even a theoretical chance of knowing what the law is, given the way that interpretive case law not only trumps black-letter written law, but is susceptible to behind-the-scenes editing at any time.

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40 Comments:

Anonymous Steveo May 25, 2014 9:27 AM  

It makes sense that retroactive case law would need retroactive opinions - perhaps what we need then is retroactive compliance. Though in terms of incarceration, we might impose "comparable" as a solution - for example, some marriages may qualify for time served on retroactive criminal behavior & conviction.

Blogger Doom May 25, 2014 9:53 AM  

While I do complain, I have never misunderstood the 'way things work(tm)'. And, if there is a reasonable spirit behind the function... I am, mostly, okay with it. In any nation, laws are only a suggestion, and aren't enforced equally. Will the man who has been convicted before be given greater scrutiny and less expectation of innocence? Of course. Will a man who operates with a bad reputation for hiding injustice behind the law be given breaks when a line is crossed as easily as the man who operates as fairly and rightly as he understands things? One would hope not. And laws are a means of enforcing specific notions, much more often than dealing with simple crimes and punishment. Examples will be made. General ideas will be exemplified as good or bad.

Are there places where every law has to be enforced in every way? Sure are. And there are places were the law is very loosely enforced. Population density, and anywhere large groups of various minorities mingle, are heavily enforced, save perhaps in specific enclaves where the animals are allowed to run almost without direct enforcement. There are many reasons not to live in major metropolitan areas, this just being one of them.

I guess, pick which type of area you want to reside... the one in which law is absolute and everything is criminal, and they pick and choose who to enforce those laws upon, or areas where you are your own law (which can go to very good or very bad). It encourages the tribal, but when tribes are in close proximity, there isn't much of a choice. It just reflects the reality, and negativity, of multiculturalism. I've chosen and will live with the consequences.

Oh, and don't say... well, but the money is there. That is choosing coin at other expenses. Welcome to the jungle, baby. But don't say you didn't know, didn't suspect, didn't understand. That really irritates when people, whether on drugs or in high paying city jobs, then bitch about the consequences. Choices.

As to judges changing the decisions, without notice... It doesn't matter, to a degree, as it comes down to enforcement. Still, it would be good if they required public notice and ink revision... They probably fuss with that because of all the law books that would have to be replaced, or at least given revision pamphlets... and the egos of judges, which are huge.

Anonymous Veorary May 25, 2014 9:56 AM  

To quietly make substantive changes in opinions is a bad practice, but easily fixable. In California state courts, for example, there's basically a 30-day window to modify decisions, and the modifications are clearly identified and publicly posted in the same place online that all opinions are posted daily. It works pretty well.

Anonymous Quintus May 25, 2014 10:03 AM  

"But it's interesting to see that virtually no one has even a theoretical chance of knowing what the law is, given the way that interpretive case law not only trumps black-letter written law, but is susceptible to behind-the-scenes editing at any time."

Do you even understand what "black letter law" is or how it develops within a legal system? You appear not to...unless you are trying to pull of very sophisticated satire.

Anonymous mlr May 25, 2014 10:05 AM  

hardly a surprise: the law you have is only as good as the quality of the people who enforce it. No algorithmic Napoleaonic Code Civil is going to save you from judges and police who have ill-intent.

Anonymous Quintus May 25, 2014 10:09 AM  

"hardly a surprise: the law you have is only as good as the quality of the people who enforce it. No algorithmic Napoleaonic Code Civil is going to save you from judges and police who have ill-intent."

Correcting a mistake isn't generally a sign of ill intent and certainly isn't in the case of post opinion editing

Anonymous Sam Adams May 25, 2014 10:28 AM  

You are a perp and guilty if the Government and its workers desire it to be so. Simple as that.
Amazing what you can do when you can steal and kill with impunity - made even more fun by convincing the victims that you are legitimate in doing so.

Anonymous zen0 May 25, 2014 10:31 AM  

Correcting a mistake isn't generally a sign of ill intent and certainly isn't in the case of post opinion editing

How many do they get to make before it is classified as incompetence?

Anonymous Orville May 25, 2014 10:36 AM  

Here is your judicial algo:
- White male? check
- Conservative or libertarian? check
- Gun owner? check
- Reads and comments on blogs critical of the govt? check

Is a domestic terrorist if score is greater than or equal to 50%. Render and throw in indefinite hold without trial or legal counsel.

Anonymous Stilicho May 25, 2014 10:40 AM  

Anything that further undermines respect for the current system is a positive development

Blogger JACIII May 25, 2014 10:52 AM  

The law is what we say it is.

Today.

OpenID bc64a9f8-765e-11e3-8683-000bcdcb2996 May 25, 2014 11:02 AM  

So, what did "Affirmative Action" actually mean in the original "context" cited by the findings of the SCOTUS?
Who seems to be the worst offender in mis-remembering THAT?

CaptDMO

Anonymous The other skeptic May 25, 2014 11:03 AM  

Over at iSteve a pundit has finally figured out why the political class wants increased immigration:

Diversity in and of itself is destructive of democracy. Why? Because it diffuses and weakens the expressed will and viewpoint of the majority. A populace with a diffused will/culture/worldview is less able to elect and hold accountable its elected representatives.

Follow the money ...

Anonymous Quintus May 25, 2014 11:09 AM  

"How many do they get to make before it is classified as incompetence?"

Far more than the minuscule number of times it has happened.

Anonymous Susan May 25, 2014 11:13 AM  

I doubt the NYT would have even brought this up if it had been Kagan or the Wise Latina doing the editing. Rather sad to find out that even the Supremes got no chili.

Anonymous emdfl May 25, 2014 11:19 AM  

Actually depending on what the "fix" is and on what the original opinion was, Quin, the results could be a completely changed opinion with a coresponding change in the teaching of case law. But that's okay, I guess, they mean well - NOT.

Anonymous GG May 25, 2014 11:38 AM  

"But it's interesting to see that virtually no one has even a theoretical chance of knowing what the law is..."

Anybody who doubts this should consider attempting to read a few hundred pages of Obamacare. It really should receive a literary award of some sort, because it takes legalese to a level I doubt we've ever seen before.

Anonymous zen0 May 25, 2014 11:59 AM  

Anybody who doubts this should consider attempting to read a few hundred pages of Obamacare. It really should receive a literary award of some sort, because it takes legalese to a level I doubt we've ever seen before.

Get the uh, uh, nearation fo da nation, nigger

Blogger Tiny Tim May 25, 2014 12:01 PM  

Supreme Court decisions are a tool, like a screwdriver, to be used when needed. Only naïve children would believe it is an honest enterprise. Roberts was gotten to the day before the Obamacare decision. Roberts was selected because he has exploitable issues in his past, not because he is an honest Judge.

The NSA exists for a reason.

Anonymous Jack Amok May 25, 2014 1:13 PM  

Correcting a mistake isn't generally a sign of ill intent and certainly isn't in the case of post opinion editing

You're too caught up in the details. A legal system where the average person has no way to know legal from illegal is itself ill-intentioned for practical purposes. It's also profoundly immoral and deserving of no respect. Surreptitious post-hoc changes of the law are just one way that the average person is kept in legal limbo. Frankly allowing judges to make alterations to written laws by their ruling is another.

If we're going to allow judges to pass judgment on laws, then let it be all-or-nothing. If there's a problem with the law, it is wholesale thrown out and the legislature can try again. No ruling that create "black letter law" but strict adherence to what was written down and voted on.

Anonymous Don May 25, 2014 1:23 PM  

If we ever get a chance to do this again. We need a law that says, "If your average high school grad with a 100 IQ can't understand it the law is unconstitutional."

And I think it was Pournelle who said all fed laws and regs should be required to be re-voted on every five years line by line. If you cannot get a majority to vote to keep it the law is gone.

Another way to cut the number of laws and regs is to make the federal code the same as the laws.

Anonymous automatthew May 25, 2014 1:57 PM  

Quintus has a familiar style. Condescension and blithe assertions.

Anonymous Daniel May 25, 2014 2:05 PM  

Ignorance of the non-existent law is no excuse!

Anonymous Red May 25, 2014 4:02 PM  

Sounds about right for America. I read about a retroactive warrant the other day:
http://www.policestateusa.com/2014/purple-zone-raid/

Kick the doors down, discover that they got the wrong place and the courts just issue a warrant making it legal.

Blogger rycamor May 25, 2014 4:45 PM  

"My police friends told me long ago that there is no such thing as a "law-abiding citizen", that the traffic laws were explicitly written to permit them to exercise their judgment and pull over anyone, at any time."

I was told this sometime in my teens also. It was presented as a positive thing--this way the cops can really nail the bad guy when they have to, without too many burdensome technicalities. That's right, the burden of technicalities are only on you, the citizen.

Anonymous Noah B. May 25, 2014 4:57 PM  

Our joke of a legal system is becoming more farcical by the minute.

Blogger RobertT May 25, 2014 6:19 PM  

When you get to court, the law doesn't mean jack shit.

I was once testifying as an expert witness when the judge began questioning me on the stand about his personal tax issues. Needless to say, we won that case, but perhaps not on the merits.

Blogger RobertT May 25, 2014 6:30 PM  

" But it's interesting to see that virtually no one has even a theoretical chance of knowing what the law is..." Anybody who doubts this should consider attempting to read a few hundred pages of Obamacare. It really should receive a literary award of some sort, because it takes legalese to a level I doubt we've ever seen before. "

Vague laws work for both sides. As do officials who don't understand the law. As a CPA representing clients before the IRS, I use this to my advantage all the time. Once you work your way beyond their attempts to reframe the issue, the ball is in your court.

Anonymous George of the Jungle May 25, 2014 7:31 PM  

Which is why we need the concept of plain letter law, each one written succinctly and including explicit boundaries of what it does not cover so stated, and each one shown to be directly derived from the Constitution and not some prior case of intermediate interpretation, thus each one standing on the merits of and to be use for only that particular situation.

Will these concepts and this legal philosophy ever occur? "...first kill all the lawyers".

Anonymous Luke May 25, 2014 8:46 PM  

Two thoughts here:

1) Thomas Ball had it right. (He's the guy who immolated himself on the steps of the Keene, NH courthouse over divorce court making his life forever both unlivable and pointless.) He spoke of the "Second Set of Books", that most of the time actually governs how .gov and its lackeys operate. His posthumously-published manifesto covers this clearly. He gave Abu Gharaib (sp) as an example of when the First (official) and Second (actual, mostly hidden except in effect) sets of books collide.

2) The US Supreme Court IMO will likely not outlive me in anything but name, presuming I live out my expected lifespan, and I'm 52. It won't be missed except by those who make money from the legal system, and those whose loyalties are to leftist causes (feminism, socialism, environmentalism, antiChristianism, anti-white racism, etc.) rather than to what the U.S. once was (and the people in it who made its existence possible).

Anonymous Loki Sjalfsainn May 25, 2014 10:49 PM  

You are all still welcome to kneel. I would not be near so fickle in my rule.

Loki 2016: I do what I want, and so can you.

Anonymous BillB May 25, 2014 10:51 PM  

What most do not know is that in 1833 the supreme court decided the Bill of Rights did not bind the states. In the 1930s the supreme court invented the doctrine of incorporation through which the court has made up a lot of shit about the Bill of Rights and how it applies to the states. Within that made up shit are holes that allow the states to get around some things such as probable cause. Probable cause is not something that allows a search. Probable Cause is a requirement for a proper warrant to issue and a proper warrant specifying EVERYTHING to be searched and seized is required for any search to be constitutional. That is not how things proceed but textually and grammatically that is what the 4th amendment specifies. We the People are just too ignorant and let the people we choose to serve us turn around and become our ruler. What the cops do is simply bullshit and if it were not for the soopreem kort's wrong decisions we might actually have some semblance of a proper legal system that protected our God given Rights.

OpenID wfgodbold May 25, 2014 11:02 PM  

BillB, most of the 4th Amendment cases aren't focused on probable cause, but on reasonableness--the argument being that if the search is unreasonable, a warrant based on probable cause is necessary, but if the search is reasonable, the warrant requirement does not attach.

The more pressing concern with the post-initial-publication editing of opinions is a due process concern. Courts often rely on SCOTUS opinions before they are officially published in the United States Reporter, and because opinions are published in four generations (as the NYT article discusses at the end), the public doesn't truly have notice of what the law actually is before the U.S. Reporter publication.

And lack notice has consistently been held as a violation of procedural due process rights under the 5th or 14th Amendments.

Anonymous dh May 25, 2014 11:25 PM  

RobertT--

Notwithstanding your career (and mine, I have a whole wing of my house that was paid for by government-generated work, as well as a boat dock and the attendant boat), it has to be remembered that this activity is not productive, it's a vampire on the neck of productive people. And as you point out, it's essentially lawlessness at $225/hour or whatever.

Anonymous Jack Amok May 26, 2014 12:51 AM  

Vague laws work for both sides.

Only in the sense that bullets work for both sides. If you have to stoop to using vague laws, you're no better off than someone using black powder and kinetic energy. You're in the situation of having to do unto other before they do unto you. Our ideals of civilization were supposed to be something a little bit better. I guess we weren't worthy of better.

Well, no, actually we were worthy of better. But we were mag-damn-nanimous enough to invite others in to the party and, which diluted our "we" and made us no longer worthy.

Anonymous BillB May 26, 2014 12:14 PM  

wfgodbold, I understand the lies. I understand that the judges pull those claims out of their arses with no evidence. No one can prove that the intent is as claimed and the previous actions are not evidence of allowable future actions. The sole method is textual and the grammar of the 4th is such that the warrant clause is directly related to and interlocked with the reasonableness clause. But as I said, in 1833 the SC decided that none of the Bill of Rights bound any states and because of that we have all the state laws that appear to violate those rights. The prohibition is absolute with no place for a warrantless search. The judges have mucked this one up by pulling crap out their nether regions.

The greatest failure of our legal system is that it does not question prior decisions over and over and over. In real science, if we did followed the lead of the judicial system, nothing would advance. Too many wrong legal decisions go on to perpetrate more wrongs on the people simply because of the BS of stare decisis.

IMNSHO, the judiciary are the greatest threat to liberty and have been so for centuries. The editing of decisions as is done simply proves that the judges lack honor and integrity.

Anonymous Roy Bean May 26, 2014 5:50 PM  

The judiciary, more often times than not, regardless of whether it has been a conservative or liberal leaning court, metes out decisions that are based on constitutional principles. They are like the umpires in a baseball game--some of their calls are judgements that we, the fans, do not agree with. The judicial branch is a DEFENDER of liberty. Stare decisis, contrary to BillB's wild claim, is the standard-bearer in jurisprudence. Moreover, prior decisions are highly scrutinized and revisited, and in some cases narrowly tailored or outright "blown up" depending upon the unique circumstances involved.


"In the 1930s the supreme court invented the doctrine of incorporation."

Not quite. The Supreme Court handed down several decisions, most notably the Slaughterhouse cases, by which there is a distinction between rights associated with state citizenship and federal citizenship via the Fourteenth Amendment.


"A legal system where the average person has no way to know legal from illegal is itself ill-intentioned for practical purposes."

Seriously? This is what passes as "insight"? The average person clearly understands legal from illegal. What they may have some difficulty comprehending are the nuances in what constitutes legal and illegal. I suggest taking a constitutional law class.

Anonymous Don May 27, 2014 11:47 AM  

Roy Bean you are speaking about how the system is supposed to work not how it actually works. The feds, every state, city and county also issues their own 'administrative code' on how to interpret and enforce those laws which the average person doesn't even know exist. The federal laws and codes would take days to feed into a wood chipper much less read. No one could know them all in a life time.

I've worked as a cop, bailiff, corrections officer, probation officer, tax agent, and various other jobs where you have to know the law and the legal code. I come from a long line of cops and I have many friends who are lawyers and judges. I am not 'joe average' when it comes to the law.

You are flat out wrong. Yes the average citizen knows the broad strokes of what's illegal because our society tells them. You cannot murder, steal, rob, commit burglary, rape, assault, extort, commit arson, etc. etc. If that was all the law consisted of you would be right. But if stare decisis was consistently used as intended we'd still have laws against adultery, sodomy, abortion etc. In fact, Roe v. Wade fucking killed stare decisis and Stern v. Marshall fucking staked the vampire.

That doesn't count all the laws no one can know because they are not made part of our consciousness nor is the public informed. Which ten year old knows they cannot open a lemonade stand? How many people know how many cars they can have parked in their driveway and what condition they can be in? Some people who engage in the activity are warned about them, no washing your cars during a drought, no loose dogs, no shooting your bb gun in certain incorporated areas, you can be arrested (never happens) for ignoring jury duty, some times and places it used to be you could be taken from your vehicle and put on a fire line or forced to sit on a jury. But those make up a small portion of those laws.

Other laws are simply not enforced immigration, hiring illegals, insider trading (unless you piss somebody off), libor scandals, fucking low level speeding and jaywalking aren't enforced in most places.

You are ignoring selective enforcement. I don't mean 'racial profiling' I am talking about all the political and talking head class that unless they piss someone off are never arrested. Look at the guy waving an illegal magazine around on tv who was warned by the police. Look at the guys who stood outside a polling booth with clubs and threatened whites who wanted to vote. Shit look at the fifteen districts in Pennsylvania that reported a 100% vote for Obama in the last election. That is statistically impossible. I have sat in court where a judge told the plaintiff that 'no the cops had no idea of your race when they pulled you over (heavily tinted windows) and you were breaking the traffic laws but hispanics had been discriminated in the past so case dismissed'. I saw another judge ask, 'did anyone get a ticket on the 15th?' A few people stood up, 'case dismissed. Somebody gave me a ticket that day.' And he was pissed. I could go on all day how judges regularly either ignore stare decisis or pass down whatever their mood is that day.

Forty years ago one of the things my grandfather said was that he could arrest anyone after following them for a six blocks driving or walking. They were all committing some crime. He predicted the outcome of the changes in the sixties and said we'd have a much less law abiding country. He was right.

Anonymous Redleg May 27, 2014 3:52 PM  

"My police friends told me long ago that there is no such thing as a "law-abiding citizen..."

I no longer use the term "law-abiding" with all of the idiotic and vague laws on the books, but instead use the term "peaceable" as it more effectively conveys the intent of what people mean by "law-abiding."

I go out of my way not to be "law-abiding" and break immoral and idiotic laws on a daily basis, especially the ones concerned with the regulation of firearms. On the other hand I am always a "peaceable" citizen even when not abiding the law. I would much rather have a "peaceable" neighbor than a "law-abiding" one as snitching on someone hiding a Jew or a runaway slave was once considered abiding by the law.

Anonymous Don Pooped His Drawers May 27, 2014 7:01 PM  

“The feds, every state, city and county also issues their own 'administrative code' on how to interpret and enforce those laws which the average person doesn't even know exist.”

This “code” is part and parcel to the law. That is, legislatures purposely include this language to enable officials to be flexible in their decision-making within the confines of the statute.


“But if stare decisis was consistently used as intended we'd still have laws against adultery, sodomy, abortion etc”

You forgot to include slavery and segregation.

Stare decisis serves as a GUIDE for judges when determining their decisions. In those cases in which the legislative branch has overstepped their bounds, or new circumstances arise that challenge the past legal reasoning for a case, those precedents can be vigorously reviewed and overturned...if and when the situation calls for it. Although, some legal scholars argue that the doctrine actually DISFAVORS legal arguments that precedents were wrongly decided in the first place.


“ther laws are simply not enforced immigration, hiring illegals, insider trading (unless you piss somebody off), libor scandals, fucking low level speeding and jaywalking aren't enforced in most places.”

Well within the discretion of law enforcement and judges. I am not ignoring anything. I simply acknowledge that selective enforcement is common in any institution and corporate structure.


“Shit look at the fifteen districts in Pennsylvania that reported a 100% vote for Obama in the last election. That is statistically impossible.”

Check your shorts again. Black Democrats do, sometimes, get 99 percent or more of the vote in black precincts. In 2008, Obama actually pitched a shutout in 18 Cuyahoga County precincts. And you would expect him to. In 2008, Obama won 97 percent of the black vote in Ohio. In 2012, it was 96 percent. In Pennsylvania this year, he won 93 percent of the black vote and 80 percent of the Hispanic vote. Exactly why it is STATISTICALLY POSSIBLE for a politician of color to clean up in precincts that are almost entirely black or Hispanic.

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