Is this the year when the Supreme Court finally becomes fallible?
Consider these recent events, all within the last month or so:
- Justice Scalia writes, and later corrects, a dissent that trumpets a misreading of his own prior opinion.
- Justice Kagan writes, and later corrects, a dissent with a mistaken assertion regarding Jewish-American history.
- The Court calls for a response in a case asking, in effect, whether a prior decision accidentally denied a prisoner habeas relief.
- After dismissing a number of cases as mistaken grants, the Court apparently establishes a double-check policy before granting cert.
- Professor Lazarus posts a much-discussed article showing that the Court has long been sub silentio revising its opinions without notice.
Meanwhile, the Court is hurtling toward another epic End of Term. With just over a month go to, major decisions are expected on recess appointments, the treaty power, cell phone searches, capital punishment, corporate religious exemptions, and the future of the TV industry—among many others.
The proofreading at 1 First St. must be getting intense.
Now, I am pretty sure that the justices have always been human, yet something new seems to be happening. I think it’s this: in small but meaningful ways, the Court is being forced to acknowledge its own fallibility.