Post-Hoc Revision of Supreme Court Decisions

This has made big news in SCT watcher circles. Prof. Lazarus’ draft Harvard Law Review article (which I suppose is itself subject to later revision) highlights two Indian law decisions, one of the Seminole Nation trust cases of the 1940s and Cass County in 1998.

The excerpt on Cass County:

The errata sheets have acknowledged the mistaken omission of the fact that Justices dissented and of an entire separate opinion of a Justice. The Court has even used the errata sheet to delete part of its rationale. In Cass County v. Leech Lake Bank of Chippewa Indians, decided in 1998, the Court explained that it declined to consider a particular legal issue concerning the scope of the Indian Nonintercourse Act because “the parcels at issue here are not alienable – and therefore not taxable – under the terms of the Indian Nonintercourse Act.” In a subsequent volume of the U.S. Reports, the Court described that reason as erratum and added that “this issue is outside the question presented in the petition for certiorari.”

An on Seminole Nation:

Seminole Nation v. United States, 316 U.S. 651 (1942) (amending opinion to make clear that certain legal issues were available for consideration on remand (see 316 U.S. 286 (1942))

Commentary on the Plains Commerce Bank Cert Grant

The Supreme Court’s decision to grant certiorari in Plains Commerce Bank v. Long Family Land & Cattle Co. surprised me a great deal. It proves, I think, that Indian law scholars and practitioners cannot claim to predict how the Supreme Court is going to act (no big surprise there, given how few Indians or Indian lawyers have clerked for the Court), but I also think it shows that the so-called Supreme Court bar can miss one every now and then [SCOTUSBlog’s Petitions to Watch seemed to miss this one].

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