The Iowa Supreme Court recently announced it has amended a decision it filed a few weeks ago. Trial court orders are amended every day.  So, too, are appellate court decisions, so there is nothing particularly notable about an amended order.  But, attention on the United States Supreme Court’s practice of amending its orders was focused upon by New York Times reporter Adam Liptak who wrote about the U.S. Supreme Court’s practice of quietly editing its opinions after they’ve been released.

That the United States Supreme Court makes minor corrections – typos and such – is no secret.  But, as Liptak noted, the justices make substantive changes as well. And they don’t tell us.

An excerpt from Liptak’s article:

The only way the public can identify most changes is by painstaking comparison of early versions of decisions to ones published years later.

But there have been recent exceptions. Last month, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus Ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the agency for seeking such authority in a 2001 case. But he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.

Law professors pointed out the mistake, and Justice Scalia quickly altered his opinion, revising the text and substituting a bland heading: “Our Precedent.”

Even more recently, Justice Elena Kagan this month corrected her dissent in Town of Greece v. Galloway, modifying a categorical assertion about the location of the first community of American Jews.

The court did not draw attention to the changes, but they did not go unnoticed. Other revisions have. A sentence in a 2003 concurrence from Justice O’Connor in a gay rights decision, Lawrence v. Texas, has been deleted from the official record. She had said Justice Scalia “apparently agrees” that a Texas law making gay sex a crime could not be reconciled with the court’s equal protection principles.

Lower court judges debated the statement, and law professors used it in teaching the case. The statement continues to appear in Internet archives like Findlaw and Cornell Law School’s Legal Information Institute.

But it has vanished from the official version published in 2006 and from the one available on Lexis, a legal database.

Read the full article here.