As regular readers here know, there are a lot of typos, too many, on Ethics Alarms, mostly because I have to write posts more quickly than I’d like, I’m often interrupted, I can’t spell and I can’t type. Thankfully readers alert me to the most egregious (two generous readers particularly), and whenever I catch a typo in an old post, which is often, I fix it (and think “One more down, 701, 566, 211 to go!”). Fortunately, very few typos over the years have resulted in a post saying something other than what I intended, though the occasions where I have left off a “not” or an “un-” have been embarrassing. It all weighs heavily on my conscience and self-esteem, which is why this revelation, regarding a consequential typo in a Supreme Court opinion, was a welcome one.
A slip opinion (in other words, a preliminary opinion subject to revision before publication) was issued in 1928 regarding a zoning dispute. The author of the opinion, Justice Pierce Butler (above), had written, “The right of the trustee to devote its land to any legitimate use is properly within the protection of the Constitution.” But the opinion was misprinted as “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution.” That was a sweeping statement about the constitutional stature of property rights, and not what the opinion was intended to stand for. But the slip opinion typo slipped under the Court’s radar for a while.
SCOTUS eventually fixed the mistake, so the final version of the opinion published in book form in United States Reports, contains what Butler intended. But the Court negligently and irresponsibly did not draw attention to the change (which was typical at the time), so most judges, lawyers and law professors assumed that the typo version was the law of the land. The mistaken version, which appeared to declare a vastly expanded interpretation of property rights, has appeared in at least 14 court decisions, including one was issued in 2020. It was cited in at least 11 appellate briefs, in a Supreme Court argument, and in countless books and articles.
A new study published in The Washington University Law Review traces the carnage and confusion created by the nearly century-old typo. Michael Allan Wolf, the law professor at the University of Florida who discovered the mistake and wrote the article, believes that while it is impossible to measure how much impact the typo has had in court decisions, there is little doubt that it has served to advance an interpretation of property rights that was never supposed to have Supreme Court support.
“It gave an additional argument to the private property rights movement,” Wolf told the New York Times this week. “And [the property rights advocates] have been very successful almost every time in pushing new theories. And 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 way it works is that 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.” Wolf calls the result of the 1928 goof “a reign of error.”
Good one, Professor.
The Supreme Court used to edit its opinions after they were published—you know, like I do sometimes. A 2014 article by Richard J. Lazarus, a Harvard law professor, revealed that the justices routinely revised their opinions without notice, even to the point of amending or withdrawing legal conclusions. It doesn’t do that any more.As of 2015, the Court began flagging revisions on its website. Of the 22 decisions in argued cases issued in June, for example, eight required revisions, resulting in 30 separate changes.
Nevertheless, mistakes still slip through, and typos are lurking that may go uncorrected in legal databases and other secondary materials. In an immigration case in April, everyone thought Justice Gorsuch wrote that the government must provide some immigrants with “a single complaint document explaining what it intends to do and when.” He meant to write “compliant document.” Fortunately, he caught the typo and fixed it the next day.
Complaint-compliant! Hey, I’ve made that one!