What do SCOTUS Chief Justice John Roberts, and Justices Alito, Kagan, Gorsuch, and Barrett have in common from the 2023 term that ended on July 1, 2024?
They revised one or more authored “slip opinion” after its first release. Cornell Law School’s Legal Information Institute attributes the term “slip” to an earlier time when
originally these hot-off-the-press opinions appeared on “slips” which could be inserted in printed volumes until the new, bound version of the opinions appeared.
So far, nine authored slip opinions from SCOTUS 2023 term have been revised according to the Supreme Court of the United States’ webpage.
An abridged version of their table follows. Unsurprisingly, the need to revise happened more often as the Court’s term was nearing its June 30 end, with several consequential decisions left to “get out the door.” (Here’s what’s left for the Supreme Court to decide, PBS New (June 26, 2024).)
Term Year: 2023
| R- | Date | Docket | Name | J. | Citation |
| 59 | 7/01/24 | 22-1008 | Corner Post, Inc. v. Board of Governors Revisions: 7/09/24 | AB | 603/1 |
| 58 | 7/01/24 | 22-277 | Moody v. NetChoice, LLC Revisions: 7/11/24 | EK | 603/1 |
| 52 | 6/27/24 | 23A349 | Ohio v. Environmental Protection Agency Revisions: 6/27/24 | NG | 603/1 |
| 51 | 6/27/24 | 23-124 | Harrington v. Purdue Pharma L.P. Revisions: 6/27/24 | NG | 603/1 |
| 50 | 6/27/24 | 22-859 | SEC v. Jarkesy Revisions: 6/27/24 | R | 603/1 |
| 49 | 6/26/24 | 23-411 | Murthy v. Missouri Revisions: 7/11/24 | AB | 603/1 |
| 46 | 6/21/24 | 23-334 | Department of State v. Munoz Revisions: 6/21/24 | AB | 602/1 |
| 43 | 6/21/24 | 22-915 | United States v. Rahimi Revisions: 6/25/24 | R | 602/1 |
| 25 | 5/23/24 | 22-6389 | Brown v. United States Revisions: 5/28/24 | A | 602/1 |
The small print of newly released SCOTUS decisions includes two tells that its decision is in “slip” format, highlighted in this example:
The SCOTUS website explains:
Opinions are posted on the website upon release in slip opinion format. Slip opinions remain posted until replaced with opinions edited to reflect the usual publication style of the United States Reports. Updated PDF versions of the opinions are posted on this website as the publication process proceeds, including preliminary prints and bound volumes of the United States Reports.
The California Courts describe slip opinions as versions of opinions that have been ordered to be published but do not reflect “enhancement, editing, and correction for the Official Reports.”
The West Virginia Courts also explain why slip opinions are not final:
Are slip opinions final?
The “slip opinions” appearing on this Web site are not the final, official opinions of the Court. Slip opinions are subject to modification and petitions for rehearing pursuant to Rule 25 of the Rules of Appellate Procedure. Readers are therefore advised, that opinions of the Court remain subject to clerical correction until officially published in the bound volumes of the West Virginia Reports (West Publishing Co.).
When a slip decision is revised
Just like how SCOTUS decisions note that “Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, [email protected], of any typographical or other formal errors.”, West Virginia’s judiciary also welcomes correction requests: “Readers are encouraged to notify the Clerk of the Supreme Court, State Capitol, Room E-317, Charleston, WV 25305, (304) 558-2601, of any typographical or other formal errors in slip opinions so that corrections may be made before final publication in the permanent volume.“
Sometimes, a court learns of an error and the need for correction through social media chatter. Supreme Court Corrects EPA Opinion After Gorsuch Confuses Laughing Gas With Air Pollutant, Forbes (June 28, 2024).
Or a court may first learn about a key omission from a decision through a post-release media inquiry like Michigan Supreme Court Justice Elizabeth M. Welch shared in her September 18, 2024 corrective order concurrence in Mothering Justice v Michigan (165325):
After publication of the Court’s opinion in this case, an outside legal publication reached out to the Court Clerk noting that footnote 23 appeared to be miswritten. As the opinion’s author, I agreed. Although footnote 5 accurately set forth the percentage of the general minimum wage that had to be paid by employers without use of the tip credit, footnote 23 was drafted incorrectly. The Court therefore began preparing a corrective order.
For the curious, here’s a side-by-side comparison of the majority opinion’s footnote 23 in its original and corrected release. The changes are highlighted.
| July 31, 2024 slip opinion footnote 23 | September 18, 2024 corrected footnote 23 |
| 23 The publication date for this opinion is July 31, 2024. Thus, the Wage Act and the Earned Sick Time Act will go into effect on February 21, 2025. The schedule for the minimum hourly wage and tip credit is therefore as follows: February 21, 2025 (originally 2019): The minimum hourly wage will be $10.00 plus the state treasurer’s inflation adjustment, using July 31, 2024, as the endpoint for that calculation. The tip credit will be 48% of minimum wage. February 21, 2026 (originally 2020): The minimum hourly wage will be $10.65 plus the state treasurer’s inflation adjustment, using July 31, 2024, as the endpoint for that calculation. The tip credit will be 60% of minimum wage. February 21, 2027 (originally 2021): The minimum hourly wage will be $11.35 plus the state treasurer’s inflation adjustment, using July 31, 2024, as the endpoint for that calculation. The tip credit will be 70% of minimum wage. February 21, 2028 (originally 2022): The minimum hourly wage will be $12.00 plus the state treasurer’s inflation adjustment, using July 31, 2024, as the endpoint for that calculation. The tip credit will be 80% of minimum wage. February 21, 2029 (originally 2023 and after): The state treasurer shall calculate the inflation-adjusted minimum wage as set forth in 2018 PA 337, § 4(2). The tip credit will no longer exist. | The publication date for this opinion is July 31, 2024. Thus, the Wage Act and the Earned Sick Time Act will go into effect on February 21, 2025. The schedule for the general minimum hourly wage rate and tip credit (the amount of tips that can be used to offset the general hourly minimum wage rate for tipped workers) is therefore as follows: February 21, 2025 (originally 2019): The minimum hourly wage rate will be $10.00 plus the state treasurer’s inflation adjustment, using July 31, 2024, as the endpoint for that calculation. The tipped workers’ minimum hourly wage rate must be at least 48% of the general minimum wage rate, and the tip credit can be used to satisfy the balance owed to such workers. February 21, 2026 (originally 2020): The minimum hourly wage rate will be $10.65 plus the state treasurer’s inflation adjustment, using July 31, 2024, as the endpoint for that calculation. The tipped workers’ minimum hourly wage rate must be at least 60% of the general minimum wage rate, and the tip credit can be used to satisfy the balance owed to such workers. February 21, 2027 (originally 2021): The minimum hourly wage rate will be $11.35 plus the state treasurer’s inflation adjustment, using July 31, 2024, as the endpoint for that calculation. The tipped workers’ minimum hourly wage rate must be at least 70% of the general minimum wage rate, and the tip credit can be used to satisfy the balance owed to such workers. February 21, 2028 (originally 2022): The minimum hourly wage rate will be $12.00 plus the state treasurer’s inflation adjustment, using July 31, 2024, as the endpoint for that calculation. The tipped workers’ minimum hourly wage rate must be at least 80% of the general minimum wage rate, and the tip credit can be used to satisfy the balance owed to such workers. February 21, 2029 (originally 2023 and after): The state treasurer shall calculate the inflation-adjusted minimum wage rate as set forth in 2018 PA 337, § 4(2). The tipped workers’ minimum wage rate must be at least 90% of the general minimum wage rate, and the tip credit can be used to satisfy the balance owed to such workers. On February 21, 2030 (originally 2024 and after), tipped employees must be paid 100% the general minimum wage rate without any tip credit permitted to offset the minimum wage rate for tipped workers. |
Mothering Justice was a high-profile case with sharp differences among the justices. So sharp that the Welch concurrence further explained about the correction:
As to the dissent’s attack on our clerical correction, I feel it’s important to outline the Court’s robust internal review processes. As an initial matter, as the author of the opinion, I own the mistake. As a secondary matter, our internal process includes multiple drafts and reviews by both the majority and dissenting Justices. Mistakes are found and corrected via input from other offices as part of our back-and-forth process on a regular basis. No Justice—either in the majority or dissent—caught the error in footnote 23. Nor did our Reporter’s Office catch the error. Although it is rare for a mistake to get past so many levels of review, this one indeed did get by our Court. For that, I apologize. Like courts across the country, this Court has a long history of issuing post-release orders to fix clerical errors; this is standard practice.
Other “standard practice” post-release/pre-publication correction examples from Michigan
Recent examples showing Michigan’s practice of issuing post-release corrections include:
Justice Bolden’s July 31, 2023 People v Posey (162373) opinion was revised on August 16, 2023 for three corrections.
The case caption in a September 13, 2023 order was corrected two days later to display the proper county name of the originating trial court.
The May 3, 2024 Syllabus in Justice Zahra’s unanimous Long Lake Twp v Maxon (164948) decision was later corrected to cure for party mislabeling.
The June 5, 2024 “slip” opinion conclusion in Marion v Grand Trunk W RR Co (164298) was revised less than three hours after its release without incident. Authoring Chief Justice Clement replaced the phrase “is unlikely to move” with “will not or cannot get out of the way”.
The June 14, 2024 first-release “slip” decision in Proquest, LLC v Twp of Ypsilanti (166549) made erroneous reference to “MCR 221.9m(2)(c)” and was later corrected to “MCL 221.9m(2)(c)” without kerfuffle on June 17, 2024.
A July 5, 2024 chief justice order was later updated with the current bench and chief justice header template. (N.b., Bridget McCormack stepped down as Chief Justice before the end of 2022, and Justice Kyra Bolden assumed office on January 1, 2023.)
Other times, different McCormack-era headers still pop up in 2024 chief justice orders without correction—which is a big-picture “no big deal” because chief justice orders never appear in the Court’s “official reports” bound volumes.
In six areas, Justice Viviano’s July 29, 2024 dissent in 165425 was revised on September 23, 2024 to replace “101” with “102” days. This happened over a month after the matter was remitted to the trial court but well before final publication.
The July 30, 2024 unanimous Michigan Supreme Court decision in 165377 was revised to correct a typo in the case name. “Healtchare” was corrected to “Healthcare”.
An August 21, 2024 chief justice order was mistakenly framed to include “The brief submitted on September 20, 2024, is accepted as timely filed” but was later updated on September 5, 2024 to “The brief will be accepted as timely filed if submitted on or before September 20, 2024.”
Final thoughts
It’s common for federal and state appellate courts to correct and revise a decision’s “slip” or first-release version.
A 2018 Michigan Supreme Court dispositive order noted such a change by the Michigan Court of Appeals in In re Conservatorship of Reah Brody v Brody (156689):
We further note that the briefs filed by the parties and the amicus discuss three sentences that were included in the Court of Appeals September 19, 2017 slip opinion but are not included in the advance sheets version of the opinion, which was released after the parties and amicus filed their briefs in this Court. The slip opinion stated: “As Rhea’s husband, Robert was an individual entitled to priority consideration. However, Robert was not entitled to consideration unless the probate court considered an independent fiduciary and found him or her unsuitable. Lyneis, as trustee and independent fiduciary, had statutory priority over Robert, despite Robert’s marriage to Rhea. MCL 700.5409(1).” These sentences are omitted from the advance sheets version of the Court of Appeals opinion, and are therefore not part of that court’s final published opinion.
Errors and oversights happen. Lengthy decisions released during the end-of-term time crunch are especially prone to errors or omissions. And they will continue.
The ability to revise or correct a “slip” version of a decision before it reaches the final publication stage is a self-correcting feature and not an appellate court bug.