The First Opinion of the Supreme Court’s 2017 Oct. Term Is Now Out – How Many Years Before It Will Be Published in Final, Official Form?

At the beginning of this week, on January 8, 2018, the U.S. Supreme Court released its first opinion of the current term. The decision in Tharpe v. Sellers, consists of a three-page per curiam, followed by a thirteen-page dissent written by Justice Thomas, joined by Justices Alito and Gorsuch. As posted at the Court’s web site readers are, perversely, invited to cite Tharpe as “583 U.S. ___ (2018)”.

In the form presented the citation is of little use. Only future decisions of the Court itself would dare to employ such an incomplete reference, at least without adding a parallel citation to facilitate precise retrieval. The Court’s practice is to leave that task to others. The Thomas dissent in Tharpe cites two 2017 decisions simply as: “Buck v. Davis, 580 U. S. ___ (2017) and Pena-Rodriguez v. Colorado, 580 U. S. ___ (2017)”. This approach forces his jump cite for a passage in the latter to read: “580 U. S., at ___ (slip op., at 17)”. Bloomberg Law, Lexis, and Westlaw have already augmented all such useless references with complete parallel cites to one or more unofficial reports.

The question revisited here is how long it will be before Tharpe‘s skeletal “official” citation is filled in, along with those for succeeding opinions that in time will make up volume 583 of the United States Reports. (The delay in Supreme Court decision publication and its effect on citation have been the subject of two prior posts, one in 2014, the other in 2016.)

By now both the legislative and executive branches of the federal government have embraced digital publication in ways that provide researchers with citable versions of the United States Code and the Code of Federal Regulations far more up-to-date than print ever allowed. They lag official action by days not years. Yet the judiciary, led by the Supreme Court, remains stuck in a print-dependent approach to publication and citation. The demand for print law reports has, of course, plummeted. At the same time federal budgets have grown tighter. The result? Growing delays.

Extrapolation from the most recent past yields a prediction will be years (four and a half to five) before Tharpe and succeeding decisions released during the next month and a half will be distributed in a “preliminary print” volume containing consecutive page numbers. That temporary, paperbound book will be labeled “Part 1 of volume 583” of the United States Reports. Unfortunately, no electronic copy of it will be released to the public. The preliminary print edition of Part 2 containing another month and a half of decisions will follow. Ultimately, those two parts will be combined into a single digital file representing the full volume. Up to a year later the bound volume of “583 U.S.” will be distributed to depository libraries and other institutions that have ordered copies. And finally, only after that, will the digital file of the volume’s final text and page numbers be placed at the Court’s web site.  Total elapsed time? Unless the Court’s procedures change, Tharpe v. Sellers won’t be published in final, official printed form until 2023. And the digital replica of that volume won’t be released until some later point in the same year. (The sequence alone prompts two simple questions: (1) Why delay the release of the electronic volume until after the print version has shipped? (2) Why withhold the electronic files of the prior preliminary print edition?)

The two earlier posts detail the costs imposed on others by these delays, as well as specific steps the Court could take to remove them from its publication process. As 2018 gets underway, the only observation to make is that the problem has not diminished, and the Supreme Court appears oblivious to it.


Leave a Reply