PERSPECTIVES → TEXT MESSAGES Issue 883 · October 27, 2021

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Until recently, the United States Supreme Court had a practice of editing its opinions after they were issued

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In the Migdal Oz commentary on the Rambam (Hilchos Tzitzis 2:7), the author writes that when the Chachmei Lunil critiqued one of the Rambam’s rulings, he responded, “Certainly, the truth is as you said, and I was mistaken in my citation of the text of the Gemara….” The Migdal Oz goes on to observe, “Come and see how great is the Rambam’s humility and righteousness… that he didn’t cleverly say, ‘It’s a ta’us sofer’ [typographical error], rather he stated clearly ‘I made a mistake’….”

I thought about that when I recently came across a New York Times piece by Adam Liptak about a famous typo in a United States Supreme Court opinion and the havoc that ensued from it. It begins this way:

“When we issue an opinion, we are aware that every word that we write can have consequences, sometimes enormous consequences,” Justice Samuel A. Alito Jr. said last month. “So we have to be careful about every single thing that we say.”

A fascinating new study of the extraordinary impact of a tiny typographical error in a Supreme Court opinion almost a century ago illustrates the point. The mistake appeared in a slip opinion issued in 1928, soon after the court announced a decision in a zoning dispute. It contained what seemed like a sweeping statement about the constitutional stature of property rights: “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution.” But the author of the opinion, Justice Pierce Butler, had not meant to write “property.” He meant to say “properly.”

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