Even Supreme Court justices can goof

By Mark Sherman

Associated Press

WASHINGTON (AP) - The Supreme Court's mishandling of big news last week about same-sex marriage was a reminder: Even the justices put their robes on one arm at a time.

Developments on an issue moving at warp speed through the legal system already were confusing. But twice in a week, the court added to the head-scratching by releasing information that was wrong or seriously incomplete. It affected both same-sex couples seeking to get married and state officials trying to preserve their bans on gay and lesbian unions.

These weren't the first mistakes made by the highest court in the land, and certainly they won't be the last. Errors at the court can be trivial, but they also can be life-changing. In 2003, for example, justices struck down state anti-sodomy laws and declared that an earlier Supreme Court decision upholding them was "not correct when it was decided, and it is not correct today."

"To err is human, and the justices and the clerks are human like the rest of us," said Aaron Bruhl, a law professor at the University of Houston.

Last Monday, the justices surprised most people in the legal world when they acted without fanfare to reject gay marriage appeals from five states. Worse than the court's unexplained orders, at least from the perspective of reporters at the court and officials and affected Americans awaiting a decision elsewhere: The thick packet of orders handed out at 9:30 a.m. EDT was missing more than 30 pages, including those with the gay marriage cases.

A malfunctioning computerized printer failed to run off pages 18 to 50, and no human in the court clerk's office or public information office noticed the problem. It is said that reporters aren't very good at math, but several soon noticed that page 51 followed page 17. The Supreme Court's retooled website, which debuted last Monday, was no help because it, too, was malfunctioning, court spokeswoman Kathy Arberg said.

That situation soon was sorted out with little consequence other than embarrassment for court officials.

A more significant error occurred last Wednesday, when Justice Anthony Kennedy put the brakes on same-sex marriage in Idaho and Nevada following an appeals court ruling a day earlier striking down both states' anti-gay-marriage laws. Idaho officials requested the delay, which remained in effect last Thursday.

But In Nevada, the state had given up its defense of the same-sex marriage ban, and county clerks got ready to begin issuing marriage licenses.

So there was confusion among Nevada officials and disappointment among couples who woke up planning to get married last Wednesday.

After lawyers and reporters sought clarification of the order, Kennedy put out a new order a few hours later that began, "Upon further consideration. ..." He lifted his hold as it applied to Nevada but left it in place for Idaho. Despite the revised order, county clerks in Nevada refused to issue licenses last Wednesday and offered no promise about when they would do so.

So how did Kennedy come to halt marriages before they began in a state that was ready to move ahead with them and didn't ask for intervention?

The court received Idaho's stay request around 8:30 a.m. last Wednesday, and Kennedy acted about 80 minutes later, 10 minutes before he and the other justices took the bench to hear arguments in unrelated cases.

Arberg said the mistake originated in the court clerk's office, which prepared the paperwork that Kennedy signed. The trouble arose because Idaho's request to the court included a document from the appeals court that listed case numbers for both it and Nevada. Kennedy acted quickly because Idaho officials said they otherwise would have to begin issuing marriage licenses, she said. Kennedy's corrected order followed soon afterward.

While not common, such goofs do happen.

In the court's last term, Justice Antonin Scalia, or perhaps one of his law clerks, misread the justice's own opinion in an earlier environmental case, and he railed against the Environmental Protection Agency in a colorful dissent. Several environmental law professors pointed out the mistake, which prompted Scalia to issue a revised, and much drier, opinion.

Correction of a different sort was at the heart of Kennedy's opinion in Lawrence v. Texas, a major gay rights ruling that overturned Texas' anti-sodomy law in 2003. Kennedy said the court's decision 17 years earlier in Bowers v. Hardwick was wrong, both in 1986 and 2003.

People hang on every last word from the Supreme Court because it is the court of last review, even when that word is a curt rejection of gay marriage appeals without any justice explaining why.

An eloquent expression of the finality of the court's actions, as well as the humanity of its justices, came from Justice Robert Jackson in 1953.

"We are not final because we are infallible," Jackson wrote, "but we are infallible only because we are final."

Published: Mon, Oct 13, 2014