Lost in the shuffle on the headline-making final day of the Supreme Court term, June 28, was the news that Frank Wagner, the Court’s longtime reporter of decisions, will retire on Sept. 30.
As Chief Justice John Roberts Jr. said in announcing the retirement and praising Wagner, “few outside this Court are aware of the reporter’s important role” in preparing opinions for publication and the syllabus or summary of the cases.
It was an apt day for Roberts to make that statement, because the Court had issued nearly 500 pages of opinions that day — an unusually high number — all of which had been edited and processed through Wagner’s office in the frantic days and weeks before the Court’s recess.
Reporters of decisions used to be better known — think Dallas or Cranch, if you’ve ever had to cite an early Supreme Court case. But now they are among the behind-the-scenes Court officials who make the modern-day Court function. They sometimes have to referee delicate spelling and usage disagreements among justices, who can be sticklers. In 1986, after The National Law Journal pointed out that the Court routinely used two different spellings of marijuana — with an “h” or a “j” — Wagner’s predecessor Henry Lind asked justices to vote. The “j” version won out, as recently recounted in the Green Bag law review.
Wagner, 65, who is preparing to leave the Court after more than 23 years, agreed to a rare interview about the job. As the Court has gotten wordier, Wagner has presided over publication of 82 volumes of U.S. Reports, more than any predecessor.
The interview with Wagner was conducted by e-mail and will be published in two parts. The next installment will be in next week’s Supreme Court Insider.
Tony Mauro: In an article you wrote in 2001 about the role of the reporter of decisions, you quoted a predecessor as describing the job as that of “double revolving peripatetic nitpickers.” In the era of spell-check, is that still an accurate description? How would you describe the job?
Frank Wagner: I think spell-check’s impact on modern writing, editing and publishing is highly overrated. Spell-check will tell you whether a word is, in fact, a word, but not whether it’s the right word. My wife, Carol — a technical editor — keeps a list of words she has found that, in context, were the wrong words but that spell-check failed to highlight because they were real words recognized by the dictionaries: for example, “manger” for “manager,” “reverence” for “reference,” “singer” for “signer,” “prefect” for “perfect,” etc., etc. And grammar-check programs are even worse than spell-checks, giving laughably bad advice in many, many instances. Unless and until they are vastly improved, these computer programs are not the death knell for editors, but a guarantee of perpetual gainful employment.
So, yes, I would say Henry Putzel’s description of the Reporter’s Office staff as “double revolving peripatetic nitpickers” is still apt. Our job is to carefully examine each draft of each opinion to assure the accuracy of its quotations and citations and, to the extent we can, its facts. We are not “fact-checkers” in the accepted sense of that term, however. We do not question a fact stated in an opinion unless it seems obviously wrong based on information gleanable from the record, the parties’ briefs or the lower court opinions. Of course, we also check each opinion for any typographical errors, misspellings, grammatical mistakes, deviations from the Supreme Court’s style rules and departures from traditional, technical rules of opinion drafting.
Mauro: What are the kinds of editing changes you will sometimes make?
Wagner: For example, we try to assure that a concurrence or dissent does not refer to its author and joiners as “we,” the pronoun traditionally reserved to the members of the majority. And when an opinion refers to another opinion as “the plurality,” we check to make sure that the other writing satisfies the technical definition of that term. We perform all of our editorial functions before each case is released and then redo them, fully and completely, in preparation for the case’s republication in the preliminary print and, later, the bound volume of the official United States Reports. In a nutshell, therefore, what we do is to pick the nits out of the opinions, over and over and over again until, we believe, they’re perfect. What the Reporter’s Office does not do, for the vastly most part, is to “correct” substantive errors in opinions. In the relatively few instances in which substantive changes have been made to opinions during my 24 terms, the impetus to do so has almost always come from [justices'] chambers or from the public through chambers.
Mauro: How big is your staff, and how many lawyers and paralegals review each opinion before it is published?
Wagner: The Reporter’s Office has about 11½ employees: three attorneys (the reporter, deputy reporter and assistant reporter); the publications officer (who monitors and guides the publication of the U. S. Reports); five technical assistants or staff assistants (who are, basically, paralegal editors); a secretary; a clerk-messenger; and a part-time intern.
Prior to a case’s initial release, we generally try to have the same attorney and the same paralegal editor read each and every word of every draft of every opinion within the case. I say “generally” because there have been exceptions to our normal practice that were driven by necessity. For example, in Bush v. Gore, when asked to decide whether the Florida Supreme Court had properly ordered recounts in certain counties of ballots cast during the 2000 presidential election, the Court was forced by time constraints imposed by federal law to adopt a very compressed briefing, argument and decision schedule. Specifically, certiorari was granted on a Saturday, the case was argued the following Monday and the decision — holding on equal protection grounds that the Florida court had erred in ordering recounts — was issued on Tuesday. The compressed schedule resounded in our very small office. The case consisted of a per curiam opinion, a concurrence and four dissents, which totaled some 59 pages. On the day of decision, each of those six opinions was sent to the Reporter’s Office at least once for editorial work. As I just said, we try to have the same lawyer and the same paralegal read every draft of every opinion in order to assure familiarity with the case and to achieve consistency in the editorial work. However, we split up each of the Bush v. Gore opinions three ways among the office lawyers and five ways among the paralegals just to assure that the work was completed before the next draft of the opinion arrived. Although we were able to fully read and edit all of the draft opinions that day, our practice of using the same people to do all the work had to yield to expediency. I believe we found most of the erroneous cites and typos before the case was released in the evening, but full editorial consistency between the various component opinions had to await their publication in the preliminary print.
Mauro: Do the opinions come to your office fully completed, including case citations in proper form, etc., or is that left to you and your staff to do?
Wagner: When we receive opinions, they are as complete as possible in a technical, editorial sense, usually with full citations to briefs, cases, statutes, regulations, court rules, etc. We examine each opinion’s text and cites for the types of problems I just mentioned and return a copy of the opinion to chambers with all of our suggested changes marked in the margins and with an explanation for each suggestion. Obviously, an opinion’s first draft usually prompts the most suggestions from my office, while the bound volume version frequently engenders no suggestions at all.
Citations to the Court’s prior opinions, even in the first draft, usually elicit few suggested corrections due to our “Cites Retrieval Macro.” Actually, as it has evolved, this device is no longer a computer macro at all; it is now a programming sequence within the Court’s opinions-preparation software. For many years, chambers personnel writing opinions and Reporter’s Office employees checking opinions spent a great deal of time typing, proofreading, editing and correcting citations to earlier cases. Obviously, this was done in an attempt to eliminate errors, achieve consistency and comply with our intricate case-naming rules. However, although we tried diligently, consistency in citations was a goal that was not always achieved.
Associate Justice Harry Blackmun, one of the justices who hired me, seemed to love to tease me occasionally about inconsistencies in the way particular cases were cited from volume to volume in the U. S. Reports. These inconsistencies rarely involved major discrepancies, but more typically entailed minor differences in the abbreviation or nonabbreviation of particular words, or the inclusion or exclusion of particular minor words or phrases. Justice Blackmun would note six or seven ways a case had been cited over the years, then ask me which one was “correct.” Well, they all were correct under our rules, but the justice wanted an answer, so I would choose a winner and share my choice with the other employees in the office.
In 1995, a team of those employees, led by Deputy Reporter Chris Fallon, completed a project aimed at eliminating such citation inconsistencies. They finished our “Cites Directory,” which contains volume-by-volume lists of recommended citation forms for each and every case decided by signed or per curiam opinion and reported in the U. S. Reports. The directory even includes a list of the cases argued during the present term. The question then became how best to make the lists available to chambers and our cite checkers. We devised the solution in 1996, tasking our intern, Derrick Lindsay, with creating the “Cites Retrieval Macro.” (At the time, Derrick was a law student and an amateur computer whiz. He is now the assistant reporter of decisions.) The macro allows an opinion writer automatically to import a recommended citation form directly from the Cites Directory lists into an opinion-in-process with a few simple keystrokes, without retyping the case name and without the possibility of committing a typographical or other error (unless, of course, we input it wrong in the first place). Obviously, this has greatly simplified the process of using, and proofreading, citations to the Court’s past opinions. We now make the recommended case citations available to the bench, the bar and the public on the Court’s Web site, under the heading “ Case Citation Finder,” on the “Opinions” page.
Mauro: Who writes the syllabus, and what kind of time pressure is there to write the syllabus?
Wagner: The reporter, the deputy reporter and the assistant reporter “write” syllabuses. I say “write” advisedly here because, in this modern computer age, syllabus preparation often involves taking an electronic copy of the majority opinion and boiling it down and down and down until we’re left with the case’s essence, its bare bones. I also say “syllabuses,” rather than “syllabi,” because once a Latin word has made the transition to English, I believe it should take an English plural.
The amount of time available to prepare a particular syllabus depends on a number of factors, including the case’s length and complexity and the lead time available before the case’s release. Normally, we try to allow about a day to prepare a syllabus, although the case’s length or brevity, or its complexity or simplicity, can greatly affect the calculation. And lead time can be the most important determinant of all.
At the end of each term, in May and June, the Court conferences on Thursday to decide which cases will be released the following Monday. Normally, we ask chambers for permission to do a syllabus once the majority opinion has garnered five votes, which generally occurs well before the Thursday conference. But occasionally a flurry of last minute votes will prompt a case’s scheduled release before a syllabus has been started. If that happens, all bets are off: We have just a few hours to prepare the syllabus, in order to allow time for chambers to digest, edit and approve it and for the Court’s Publications Unit to prepare it for publication in the paper bench opinion pamphlet, for transmittal to our Project Hermes subscribers, and for inclusion as part of the paper and electronic versions of the slip opinion.
Mauro: Do the justices get to approve the syllabus and whatever changes your staff makes to the opinions, down to the last comma?
Wagner: The justices approve everything we do, down to the last suggested comma, thin-space or em-dash/character “bump.” The U. S. Reports is the record of their work, not mine, and they are entitled to have it appear exactly as they wish. And the syllabus-approval process actually provides a great deal of security and comfort for me and my assistants. Several times since I’ve been reporter, I’ve gotten letters claiming that a syllabus misinterpreted the case it summarized. In each instance, I was able to respond that I stood by my syllabus, since it had been approved by chambers before the case went to print, but offered to run it by the justice again, just in case. Each time the syllabus came back reapproved without change.
Next Week: With Court decisions online, is the printed U.S. Reports still needed? Contact Tony Mauro at email@example.com .