Frank Wagner, the Supreme Court’s reporter of decisions is retiring on Sept. 30. But he is “very happy” to report that he won’t be the last person to hold that position, in spite of technological change. In the second installment of our interview with Wagner (the first is here ) he talked about the future of printed versions of Court opinions in a digital age. His message: the bound volumes of U.S. Reports will be around for awhile. Wagner also discussed stylistic differences among justices, including a still-unresolved debate over the use of apostrophes in plural possessives. Justices have not come to blows, and Wagner said he saw no urgent need to referee the difference of opinion, allowing each justice to handle it his or her own way. The text of the interview follows. (Footnote: In the first part of the interview, Wagner said justices have the final say over every detail of their opinions, “down to the last suggested comma, thin-space or em-dash/character ‘bump.’) Several readers asked what a “character bump” is. Here is Wagner’s explanation: “It’s Supreme Court style not to insert spaces before and after an em-dash, but to ‘bump’ the dash against the letters (or characters) immediately preceding and following it.” )In a 2001 article in the Journal of Supreme Court History titled “The Role of the Supreme Court Reporter in History,” you indicated different justices have different preferences regarding syllabi, with Justices John Paul Stevens and Antonin Scalia preferring brevity, and Justice Ruth Bader Ginsburg preferring fuller summaries. Are there still differences on this, or are they more uniform in length and detail now?It’s still much the same: The two positions represent the opposite poles of thought on the subject, and all of the present justices (except, possibly, Justice [Elena] Kagan, of course) seem to fall somewhere along the continuum. Personally, I agree with the traditional “brevity” school. Those wishing to determine what a particular case is about should read the case itself, not the syllabus, and should use the syllabus only as a road map to the case. A note at the top of each bench and slip opinion syllabus warns: “The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.” Detroit Timber & Lumber reveals the reason for that warning, recounting counsel’s attempt to rely on a headnote in an earlier case that misinterpreted the decision it was purportedly summarizing. Ouch! In all fairness, however, I should also note that there is support for the view that the syllabus should be fuller because it is the only information on a case that busy readers have time to digest. For example, several years ago the director of Cornell University’s Legal Information Institute told a gathering of reporters of decisions that more people read the syllabus for a given case on LII’s Web site than read the majority opinion.How often do you receive letters from practitioners and others suggesting corrections or changes in the opinions and in the syllabi? Do you welcome these suggestions?As I said, we rarely receive letters suggesting corrections to syllabuses. I’d like to think that’s because they’re perfect, but I recognize that it’s probably because of their relative unimportance in the grand scheme of things. As to the opinions themselves, we receive roughly 10-to-20 letters per term suggesting changes. Letters sincerely intended to help correct errors are very, very welcome. As the note at the top of each bench and slip opinion states: “This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions . . . of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.” I tend to discount only those letters in which a correspondent expansively interprets “typographical or other formal errors” to promote his or her own self-interest. For example, l have several times rejected out of hand letters from authors stating that, surely, the Court’s oversight in failing to cite their worthy tomes in an opinion should be corrected when the case is reprinted in the U. S. Reports. One of these people then went so far as to write directly to the justice in question to correct the “formal error” that I had so cavalierly ignored. Gratifyingly, that person received an even cooler reception from chambers than she had from me.There have been disagreements over the years on the Court over spelling of “attorney’s fees” and “marijuana.” Have there been any recent disagreements over style or spelling, and how were they resolved?I can think of only one such thing at the moment, but I wouldn’t call it a “disagreement,” just a difference in preferences. And I doubt it needs to be resolved, at least at the present. When I came to the Court in 1987, the prevailing rule for a regular plural possessive was simply to add an apostrophe after the word’s final “s.” For example, “Congress’.” Over the years, however, four justices informed my office they preferred to add another “s” following the word’s final s-apostrophe — e.g., “Congress’s” — albeit each in slightly differing circumstances. The justices are all highly capable legal writers committed to maintaining their own individual writing styles. Thus, while we try to maintain a high degree of consistency as to style in the U.S. Reports, the Reporter’s Office has always kept a list, and has attempted to assure the incorporation, of each justice’s individual style preferences in his or her opinions. I have monitored the plural-possessives situation over the years, but because a majority of the Court has always continued to follow the original prevailing rule — which I prefer — I have never felt the need to poll the Court to try to achieve common ground. There seems even less reason to do so now, since only three of the four dissenters from the prevailing view are still on the Court.How has technology helped or impeded the job of reporter of decisions?The ways in which technology has facilitated our work are legion. I’ll name just a few. Automation allows us to post the Court’s slip opinions on our Web site just moments after they are announced from the bench and to include a permanent and growing collection of U.S. Reports bound volumes online. It has also enabled the creation and dissemination of our Cites Retrieval Macro, which all but eliminates the possibility of typos in cites to the Court’s earlier opinions. And it has allowed us to create and post on the Court’s internal network a fully searchable, bookmarked version of the Supreme Court Style Manual, which has been a favorite of the law clerks, almost all of whom are new each year. Speaking of law clerks, technology has enabled the deputy reporter to create an online, segmented, audio-visual version of her yearly law clerk orientation program, which the clerks can view and revisit at their leisure as they are confronted with particular tasks. And the ability to borrow and manipulate majority opinion text has allowed us to prepare tighter, more informative syllabuses in a shorter period of time. Finally, we no longer have to remember so many things. For example, we can instantly determine whether the Court has traditionally hyphenated a particular unit modifier by doing a simple computer search. The only negative I can think of — and, obviously, this is only from my perspective, not from the Court’s — is that technology has greatly shortened the response time between opposing opinions, allowing the dialogue to extend longer into the production cycle than it did in the old, hot-metal-printing days.A veteran Supreme Court practitioner recently told me he has not cracked open a volume of the printed U.S. Reports in at least five years, because of the ease of using online versions. Do you still see a role for the printed U.S. Reports, or do you foresee a time when it will fade away?I think your practitioner may be flirting with disaster if he is using online versions of opinions to actually conduct negotiations and litigation, particularly if the online cases on which he is relying are anything other than those contained in the 48 bound volumes of the U.S. Reports that we have reproduced on the Court’s Web site. Supreme Court opinions evolve over time, changing continually in small — but sometimes large and important — ways as they progress through their various iterations, from bench opinion to slip opinion to preliminary print to bound volume. There are even a relatively few post-bound-volume changes included in the occasional errata notes at the front of some volumes. A failure to account for this evolution represents an enormous potential pitfall for the unwary lawyer wishing to rely to his or her client’s detriment on language that may have changed significantly since the case was released. A similar problem inheres with respect to reliance on unofficial versions of the Court’s cases: As reliably as the scanner or transcriber may have reproduced the Court’s text, if the result deviates in any way from the official version, it is wrong. Even the Court’s own online cases may be unintentionally and inadvertently deficient in some way. In 28 U.S.C. §411, Congress has designated the U.S. Reports the official publication of Supreme Court decisions. The Court’s Web site cautions: “Only the printed bound volumes of the United States Reports contain the final, official opinions of the Supreme Court . . . . In case of discrepancies between a bound volume and the materials included here — or any other version of the same materials, whether print or electronic, official or unofficial — the printed bound volume controls.” Please don’t get me wrong here. I’m not denigrating the work of unofficial republishers of the Court’s opinions, who perform a valuable service for the Court by sharing its opinions with a much wider audience than would otherwise be the case. I think your practitioner is perfectly safe if he is using unofficial online sources simply to apprise himself of the results of particular cases or the development of the law. Nor am I a Luddite. I acknowledge that budgetary constraints may eventually force most governmental units to abandon the printed word in favor of publishing their official materials exclusively online. That has already begun to happen around the world. It is occurring in this country primarily with respect to state administrative codes, but the conversion of other materials, both federal and state, has already begun. Several years ago, I co-chaired an Association of Reporters of Judicial Decisions committee that looked into this development. We concluded that the Internet is probably the future of most official governmental information, but that the time is not yet ripe to abandon the official print medium. Rather: “[O]n-line government documents should not be designated ‘official’ unless they are (1) authenticated by encryption, digital signature, or some other computerized process to safeguard them from illegal tampering and (2) permanent in that they are impervious to corruption by natural disaster, technological obsolescence, and similar factors and their digitized form can be readily translated into each successive electronic medium used to publish them. So long as no computerized process guarantees such permanence, a governmental entity should not designate a non-print-published, electronic document `official’ unless there is a statute in the particular jurisdiction requiring the authentication and perpetuation of ‘official’ online documents or the issuing governmental entity undertakes to make whatever conversions are necessary in the future in order to perpetuate the document in an accessible, accurate, ‘official’ form.” Statement of Principles: “Official” On-Line Documents ¶3 (2008). I am very happy that (apparently) I will not be the last reporter of decisions to publish the U.S. Reports. However, I recognize that the Reports may be somewhat closer to extinction than most official publications because the Government Printing Office is currently undertaking a massive project to place authenticated and permanent versions of seminal federal publications, including Supreme Court opinions, online. But even if the printing of the U.S. Reports were ultimately discontinued, I don’t believe that would spell the end of the Reporter’s Office. What the office does for the Court is editorial work, not just publication of its books. We write the syllabuses and we check the opinions for errors in their quotations, citations, and facts. Those things don’t have anything to do with whether there are official books or not. The value we add is there even before the opinions go to the printer or are posted on the Web site. Incidentally, state authorities have been much slower than the GPO to address the authentication and permanence of their online materials. Although the National Conference of Commissioners on Uniform State Laws is drafting a model act on the subject, the draft reportedly lacks the teeth necessary to assure the permanence of official online documents.In decades past, the U.S. Reports would include summaries of arguments and, in rare instances, notes from the reporter of decisions. Should those be brought back?We still use Reporter’s Notes occasionally, primarily to point out that the Court somehow modified a particular order after issuing it. I don’t foresee any major changes in the frequency or scope of such notes in the future. I also think that the practice of summarizing arguments will never be resurrected. It seems sufficient to me that the Court’s Web site presently reproduces, for each and every argued case, both the merits briefs (through the auspices of the American Bar Association) and the transcript of the oral argument (with the assistance of our Court reporter, Alderson Reporting Service). Contact Tony Mauro at [email protected]