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Summary:

The Supreme Court has long made surreptitious changes to its opinions without telling anyone. In response, a coder has created a tool that flags and publicizes those changes.

Supreme Court opinions are the law of the land, and so it’s a problem when the Justices change the words of the decisions without telling anyone. This happens on a regular basis, but fortunately a lawyer in Washington appears to have just found a solution.

The issue, as Adam Liptak explained in the New York Times, is that original statements by the Justices about everything from EPA policy to American Jewish communities, are disappearing from decisions — and being replaced by new language that says something entirely different. As you can imagine, this is a problem for lawyers, scholars, journalists and everyone else who relies on Supreme Court opinions.

Until now, the only way to detect when a decision has been altered is a painstaking comparison of earlier and later copies — provided, of course, that someone knew a decision had been changed in the first place.  Thanks to a simple Twitter tool, the process may become much easier.

Code to the rescue

David Zvenyach is general counsel to the Council of the District of Columbia and, in his spare time, likes to experiment with computer code. Upon learning of Liptak’s column, which was based on a study by Harvard law professor Richard Lazurus, he decided to so something about it.

Last week, he launched @Scotus_servo, a Twitter account that alerts followers whenever a change is made to a Supreme Court opinion.

The process is fairly simple. As Zvenyach explained in a phone interview, it uses Node, an application written in JavaScript, to crawl the “slip” opinions posted to the Supreme Court website. If the application, which performs a crawl every five minutes, detects a change, it notifies the automated Twitter account, which tweets out an alert.

Shortly after, Zvenyach sends out a manual tweet that calls attention to the change — something he has already had to do, flagging a small change to a patent opinion this month:

In the short time since Zvenyach launched the tool, another coder has added a feature that highlights the changes, and likewise tweets them out. Here’s a screenshot:

SCOTUS_servo change

Given courts’ frequent misunderstanding of technology, I asked Zvenyach if there’s a risk that the Supreme Court might block his tool from crawling the decisions. He says that he checked the court website’s terms of service, and that he doesn’t anticipate a problem (nor should he, I would add, since the decisions are public domain documents).

An easy tool for accountability

The @Scotus_servo account is just one example of how a simple piece of code can improve judicial transparency. Another is @FISACourt, which inspired Zvenyach, and which crawls the docket of the country’s controversial spy court and alerts the public when there is a new development in important cases about government surveillance.

The tools appears to be so cheap to create and deliver such obvious benefits, it’s a wonder that courts and government websites don’t integrate them as a matter of course.

Instead, in the case of the Supreme Court, it appears that one man’s simple script is for now the best way for the public to stay up to date on unannounced changes to the law of the land. Here, from Zvenyach’s GitHub page, is his self-proclaimed mission:

WHEREAS, It is now well-documented that the Supreme Court of the United States makes changes to its opinions after the opinion is published; and

WHEREAS, Only “Four legal publishers are granted access to “change pages” that show all revisions. Those documents are not made public, and the court refused to provide copies to The New York Times”; and

WHEREAS, git makes it easy to identify when changes have been made;

RESOLVED, I shall apply a cron job to at least identify when the actual PDF has changed so everyone can see which documents have changed.

  1. It is always a problem when things are done in the dark, without over sight and transparency. Sounds like @Scotus_servo is necessary scrutinizer.
    Leslie

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  2. Publicizing changes to SCOTUS rulings is a threat to national security …or something like that. Right? Just trying to apply NSA logic to everything.

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  3. Chum Lee Junior Thursday, June 12, 2014

    Similar scenario to “Animal Farm”, where the pigs kept changing the laws that were written on the wall, knowing that most of the animals couldn’t read, or were too stupid to understand the meaning of the changes.

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  4. Such a great tool. It’s great to be using technology in this way. I wonder if there’s some applications for Australia through programs like Unleashed, where they release large amounts of government and public data to developers.

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  5. Michael Kaufman Thursday, June 12, 2014

    This is a very useful tool, but lets not get too carried away here. Its not like the SCOTUS was keeping the changes a secret.

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    1. Unlike every other court in the county, all of which do so in public orders that acknowledge the changes being made, SCOTUS may not have been keeping the changes “secret,” but it was certainly hiding — or, at least, not disclosing — the changes.

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    2. Michael wants to take a bus. A bus on a route that has several tens of thousands of timetables. At the end of this trip is a job and if he doesn’t arrive for work, he won’t have it anymore.

      Michael finds all the schedules, reads them, and plans accordingly. But halfway through his trip, one bus doesn’t arrive. Unbeknownst to Michael, the transit authority had altered one of the schedules — it changed the route of the bus, actually — and now Michael was waiting on the wrong street.

      His faulty understanding of the route caused Michael to lose his job, his home and his wife.

      When he called to complain:

      Michael: You made a change to something very important and didn’t bother to tell anyone??!

      Dispatcher: It’s not like we kept it a secret. You could have gone through all tens of thousands of our routes, comparing them one by one, and realized we made a change.

      Michael: But that would take years! Why don’t you just have a website where you post just the changes so anyone can quickly see if you’ve altered something that changes our understanding of the routes and, by extension, has a major impact on our entire life?!

      Dispatcher: Let’s not get too carried away…

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      1. ba-da bing

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      2. Michael: You made a change to something very important and didn’t bother to tell anyone??!
        Dispatcher: It’s not like we kept it a secret. You could have gone through a̶l̶l̶ ̶t̶e̶n̶s̶ ̶o̶f̶ ̶t̶h̶o̶u̶s̶a̶n̶d̶s̶ ̶o̶f̶ ̶o̶u̶r̶ ̶r̶o̶u̶t̶e̶s̶,̶ ̶c̶o̶m̶p̶a̶r̶i̶n̶g̶ ̶t̶h̶e̶m̶ ̶o̶n̶e̶ ̶b̶y̶ ̶o̶n̶e̶,̶ the one route you take one they day you were taking it and realized we made a change.

        If people are interested in a change they can track it. This should be seen as making finding this info a bit easier instead of revealing hidden, or obscured, information.

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  6. It’s worth noting that not all public domain documents are as public as others when it comes to US Courts. When individuals tried to open up PACER documents they were shut down and investigated.

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    1. Not quite true. PACER was open and free to use. I had an account. I was limited to 10 queries per day or month, I don’t recall the details. It was sufficient. I am an unemployed widow. If I needed more access, the “rate limiting” could be eased or removed on a sliding fee scale. However, thanks to Carl Malamud (who manipulated and convinced Aaron Swartz to help him mass download the entire archive all at once), I no longer have ANY access to PACER.

      Go fast, break nice things that worked, just to further your personal political ideology… thanks a lot, Carl Malamud. NOT!

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      1. “If I needed more access, the “rate limiting” could be eased or removed on a sliding fee scale.”

        So why have “rate limiting” at all? If it’s to save resources (servers and bandwidth cost money) then they should have been happy that somebody besides them tried to spread those public domain documents.

        This is about information and it’s ease of access to it, just because they give you access to information, while limiting your rate of access, does not mean that you really have “freedom of information”, in essence they are still willfully preventing you from seeing the “full picture”.

        It’s the difference between looking at a picture without anything in your line of sight and somebody forcing you to look at that picture trough a piece of cardboard with small holes cut into it.

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        1. The end result is no access for me and other poor widows. I may not have had full, genuine freedom of information, but now I have nothing, and no hope of access restored any time soon.

          Dan, I understand your point. I grasp the validity. Still, there is a good reason for Carl Malamud types to go through appropriate channels.

          “they should have been happy that somebody besides them tried to spread those public domain documents”
          I knew how to get access to documents through PACER. Carl Malamud didn’t offer his dump of public domain documents to me, for free or otherwise. (Dump, a snapshot. So it needed to be updated. I miss PACER.)

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          1. So your response to the questionable act of shutting down PACE is to blame the problem on someone who had no control over the system in the first place? I think your logic has a few gaping holes in it there, Ellie K.

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            1. And you, Hairy Canadian, don’t know how to spell. The system name is PACER not PACE. I am not yelling, as it is an acronym.

              PACER was closed to the public as a direct consequence of the events to which I alluded, or rather, that Dan mentioned. Obviously, “someone” did have (succeeded in gaining) control of the system.

              You have made me very irritable. I do NOT have any “gaping holes” in my logic, nor anywhere else! Dan was able to converse with me without being unpleasant. No, I am not being feminist righteous, but use some common sense, okay? This is a sufficiently p a i n s t a k i n g response already…

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            2. Ellie, his point is that you are taking “Malamud did X, therefore PACER had to shut down” as a given. It did not have to shut down. That was a choice that someone made. Instead of blaming someone who did something that you agree was valid (unless I’m misunderstanding you on that point), you are within your rights to blame the entity that reacted by entirely closing PACER instead of making necessary changes to keep it open.

              To use a clearcut analogy, let’s say a 10 year old child ran without looking and ran into their parent, knocking the parent over. The parent then responds by telling the child that they are never going to be allowed to go out with friends as long as they live under their parent’s roof due to this transgression. It’s within the parent’s right to make that punishment, and the punishment is a direct result of an action. However, most people would say that the parent is being over-the-top and should have a more reasonable reaction.

              In this scenario, Malamud is the child and the people that decided to shut down PACER are the parents. It was not necessary that they choose that course of action, so instead of blaming Malamud, it makes more sense to many people to blame PACER for shutting down instead of adapting.

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            3. In the past, the government gave me access to PACER. Now, I have no access to PACER. This has not improved my situation, yet I keep being told that I’m wrong, that I have gaping holes.
              - The government has PACER.
              - Carl Malamud has his own copy of the contents of PACER.
              - I have nothing.

              To extend your analogy, because Carl Malamud behaved childishly, he ruined it for everyone. Well, everyone who is not an attorney, nor a Berkman Fellow or whatever sinecure Carl Malamud has.

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  7. Merkin Muffley Thursday, June 12, 2014

    pains-taking.

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    1. Thanks, Merkin.. A couple people pointed out the etymology (you’re right – it’s “pains taking” not, as I had it, “pain staking” .. I updated by writing it without the hyphen)

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  8. Matthew Hunt Friday, June 13, 2014

    so…this sounds REALLY bad, has anyone thought about seeing if any case decisions were made by lower courts based on “changed” decisions? For example, what might happen if during a lower court trial they “change” something, but no one notices DURING the trial…could this cause mistrials? It seems quite dubious, any relationship between these changes?

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    1. Monsieur Defarge Friday, June 13, 2014

      I agree. This should be looked into. How would one go about doing so?

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  9. This opens the two app providers and Twitter to a Denial of Service attack from the Supreme Court.

    If the Court starts re-issuing judgments at an extremely high rate (perhaps just cosmetically altering the last 200 years worth of judgments each 10 times an hour) the apps will be overwhelmed.

    The Court is legally entitled to do this so we should expect them to exercise such a right.

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    1. >> This opens the two app providers and Twitter to a Denial of Service attack from the Supreme Court.

      A Denial of Service attack is when someone intentionally floods a server with bogus requests at a rate that overwhelm the server.

      Since the changes you state would be neither bogus nor in a volume that would even dent Twitter, your argument collapses.

      And that’s before I even get to asking you to cite an example of a cosmetic change to a SCoTUS ruling. “Cosmetic” being one that affects nothing.

      >> The Court is legally entitled to do this so we should expect them to exercise such a right.

      I expect you to exercise your right to a community college. Looks like we’re both going to be holding our breath for a while, eh?

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    2. Twitter last year handled a peak of 143,000 tweets per second. (http://www.slashgear.com/twitter-scores-new-tweets-per-second-record-with-143000-peak-16294065/), and they’ve no doubt improved their capabilities since then.

      I’m reasonably confident the Supreme court isn’t going to manage to make that many changes in the 5 minutes between the checks this tool makes.

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  10. That’s nice but it smells of mitigation and not patching. Fix the problem instead and require the supreme court to always notify, in public, about any change they make.

    Not a US citizen so I might be missing something but come on… without notifying, that can’t be right. A law, at it’s core, is an agreement between state and citizen. How can there be an agreement when both sides don’t know the terms?

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    1. WhoBel, I won’t disagree with your argument except to point out that you are assuming a perfect world where every entity has good intentions and perfect competence. One could in theory impose this requirement on the Supreme Court, but then you would still be depending on SCOTUS to do what is required – in effect, to police itself. In order to be sure SCOTUS followed through, you would still need independent verification. That is one reason the First Amendment exists: a free press is a check on what the government does. Since you are not a US citizen, you may not appreciate the degree to which the framers feared centralized government power and the lengths they went to protect the people from it. (Sadly, way too many US citizens lack the same appreciation.)

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      1. “A law, at it’s core, is an agreement between state and citizen. How can there be an agreement when both sides don’t know the terms?”

        WhoBel actually points up something that 99.9999% of Americans misunderstand about our own government. SCOTUS decisions have no force of law unless the Executive Branch and the Legislative Branches go along with their decisions.

        Thus SCOTUS decisions are NOT the law of the land, rather they are simply the opinions of a group of unelected men and women in robes who have little to no oversight, let alone Constitutional checks and balances. After publication, and with almost no exceptions, our Executive and Legislative Branches implement these opinions into law without allowing “We The People” any recourse and with absolutely no attempts to apply the least amount of Constitutional checks and balances!

        Why should we then be in the least bit surprised when SCOTUS goes back and changes these rulings and fails to notify anyone at all? They are perfectly within their rights to change their opinions at any time they wish to, after all that’s ALL they are: OPINIONS, not laws!

        Its high time Americans learned this and began to act accordingly by bringing our government back into line with the actual Constitution, rather than allowing the continuous and unending growth of our government in unConstitutional ways!

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