Until recently, the United States Supreme Court had a practice of editing its opinions after they were issued
In the Migdal Oz commentary on the Rambam (Hilchos Tzitzis 2:7), the author writes that when the Chachmei Lunil critiqued one of the Rambam’s rulings, he responded, “Certainly, the truth is as you said, and I was mistaken in my citation of the text of the Gemara….” The Migdal Oz goes on to observe, “Come and see how great is the Rambam’s humility and righteousness… that he didn’t cleverly say, ‘It’s a ta’us sofer’ [typographical error], rather he stated clearly ‘I made a mistake’….”
I thought about that when I recently came across a New York Times piece by Adam Liptak about a famous typo in a United States Supreme Court opinion and the havoc that ensued from it. It begins this way:
“When we issue an opinion, we are aware that every word that we write can have consequences, sometimes enormous consequences,” Justice Samuel A. Alito Jr. said last month. “So we have to be careful about every single thing that we say.”
A fascinating new study of the extraordinary impact of a tiny typographical error in a Supreme Court opinion almost a century ago illustrates the point. 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 mistake appeared in a preliminary “slip” opinion, and it was eventually corrected in the final version of the opinion appearing in the authoritative United States Reports, which reads, “The right of the trustee to devote its land to any legitimate use is properly within the protection of the Constitution” (italics mine). But although the opinion was amended, the typo lives on. Many courts did not take note of the change, and the mistaken version, stating “property,” has appeared in at least 14 court decisions, at least 11 appellate briefs, and various books and articles.
This was no inconsequential error, either. For one thing, the incorrect word is a real one and it fits into the context in which it appears, making the mistake very hard to discern. Even more importantly, it changes the meaning of the sentence in which it appears, with real legal implications.
Michael Allan Wolf, the University of Florida law professor who discovered the mistake, says it “gave an additional argument to the private property rights movement…. this is a big one, because it supports the almost commonly held notion that you have a right to do on your property what is reasonable. That’s not the way it works… the government has the right to place reasonable restrictions on your use of property. I know it’s subtle, but that’s a big difference.” He did acknowledge that “it was impossible to know whether the incorrect statement affected the outcome in the cases in which judges considered or cited it.”
Now, were I in mashal-sensing mode, this story would be red meat. I could wax eloquent about what this story tells us about the importance of every word — every letter! — we utter, with all the implications that holds for our davening and our everyday speech.
But today, at least, my interest is instead in what the writer of the piece revealed next: that until recently, the United States Supreme Court had a practice of editing its opinions after they were issued, without public notice. He cites a 1981 internal memorandum from Justice Harry A. Blackmun in which the justice criticized the court for operating “on a strange and ‘reverse’ basis, where the professional editing is done after initial public release.”
It was only seven years ago that Harvard law professor Richard J. Lazarus finally blew the whistle on the justices. In a 2014 law review article, he disclosed that for the longest time, they have “been revising their opinions without public notice, sometimes amending or withdrawing legal conclusions.”
His words had an impact, and since 2015, the court’s website has noted any revisions made subsequent to the issuance of a decision. According to the website, for example, of the 22 decisions issued by the Supreme Court last June, eight of them required revisions, resulting in a total of 30 changes.
The whistle-blower, Professor Lazarus, is quoted as saying that the justices are “doing much better in being willing to acknowledge their mistakes.” I suppose that’s a nice thing to hear. Frankly, though, since it’s the members of the highest court of the land that we’re talking about, those words are also more than a tad disconcerting.
A midrash cited by Rav Chaim Kanievsky in his sefer Orchos Yosher states, “someone who speaks the truth will never sin.” The midrash illustrates this principle with the story of a young sinner who decided to better his ways and went to consult the Tanna Rabi Shimon ben Shetach for advice on how to do so. He told the young man to swear to tell the truth always, come what may.
He did so, and soon thereafter, after giving in to an overwhelming urge to steal a neighbor’s possessions while the woman was away, he realized that when confronted by her, he would need to lie and thus, violate his oath. This enabled him to desist, just as Rabi Shimon ben Shetach had foreseen.
In a similar vein, l’havdil, Professor Lazarus went on to say that, “the fact that they have to acknowledge [their mistakes] probably makes them more careful. I think there would be more mistakes being made if they didn’t acknowledge them.” Reading his words, I thought of this midrash and Rabi Shimon’s wise counsel.
I was recently reading a tribute to a prominent professor submitted by her various students on the tenth anniversary of her passing. One of these students, now a teacher at Columbia, writes: “…She was interested in helping me navigate the complex juggle of life and indeed she is the only professor I ever conversed with who honestly admitted when she mistakenly said something in either a private or public forum.”
That I was taken aback by the statement is perhaps a sign of my own naiveté, but it was eye-opening nonetheless. A woman teaching at Columbia has probably interacted over the decades with a great many professors. Yet she’d never met one willing to admit to having misspoken even in private.
Neither in the case of the non-admitting professors nor that of the non-acknowledging justices is the issue one of conscious falsehood, but merely of mistakes. And even though all people err, admitting it when we do can be very hard on the ego.
Yet it can also feel very good — even purifying. I’m no paragon of emes by any means, but my own experience has been — however difficult it may be to fess up to a mistake or wrongdoing — that doing so often feels cleansing, like going verbally to the mikveh. There’s a sense of relief for the conscience.
Many others surely share the sentiment. And thinking about how emancipating it can feel to own up to our mistakes can help us embrace such opportunities rather than flee from them.
Originally featured in Mishpacha, Issue 883. Eytan Kobre may be contacted directly at email@example.com
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