The Volokh Conspiracy
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What If the Supreme Court Corrected an Error and No One Noticed?
Adam Liptak reports on a Supreme Court typo that was quickly fixed, but lives on nonetheless.
Supreme Court slip opinions sometimes contain typos. They are typically fixed quite quickly (and for most of the Court's history, quite quietly as well). Even if the error concerns something substantive, so long as the official version of the opinion published in the U.S. Reports is accurate, it is no big deal.
But what if a typo in a slip opinion affects the substance of the Court's reasoning or holding, and what if that typo is quoted in subsequent lower court opinions in legal briefs? As reported in the New York Times, that appears to have happened with Washington ex rel Seattle Title Trust Company v. Roberge, in which a potentially consequential typo lived on despite the Court's correction.
From Adam Liptak's story:
The mistake appeared in a slip opinion issued in 1928, soon after the court announced a decision in a zoning dispute. It contained what seemed like a sweeping statement about the constitutional stature of property rights: "The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution."
But the author of the opinion, Justice Pierce Butler, had not meant to write "property." He meant to say "properly." . . .
The court eventually fixed the mistake, and this is what appears in the final version of the opinion published in book form in United States Reports: "The right of the trustee to devote its land to any legitimate use is properly within the protection of the Constitution." . . .
The wrong version of the statement has appeared in at least 14 court decisions, the most recent of which was issued last year; in at least 11 appellate briefs; in a Supreme Court argument; and in books and articles.
It is hard to know whether the typo has affected the outcome in subsequent cases, the erroneous quote does appear to have affected arguments made in various cases, and may have encouraged courts to reach stronger conclusions about the scope of property rights than the 1928 decision really supports.
The NYT article draw heavily on a law review article by University of Florida law professor Michael Allan Wolf forthcoming in the Washington University Law Review, "A Reign of Error: Property Rights and Stare Decisis." Here is the abstract:
Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent cases and other law and law-related sources; explores why the phenomenon of reproducing mistakes matters in a legal system whose lifeblood is words and that heavily relies on the principle of stare decisis; and argues that one legacy of this cautionary tale of an unforced error can be a functional understanding of how the Due Process, Equal Protection, and Takings Clauses can and should protect private property rights in different yet related ways.
