Davies, Ross E., The Last Word (March 7, 2010). Journal of Appellate Practice and Process, Forthcoming; George Mason Law & Economics Research Paper No. 10-15. Available at SSRN: http://ssrn.com/abstract=1566468
Once in a great while a member of the Supreme Court tries to get the last word. “Last word,” that is, in an official sense – a late-breaking opinion issued by a Justice acting as a Justice. Not informal last words such as anonymous stabs at colleagues via the press, or extemporaneous ejaculations from the bench, or post-retirement disclosure of changes of heart. Official, juridical attempts to get the last word come in two forms: (1) the surprise opinion, meaning a separate opinion (a concurrence or dissent) issued by a Justice without reasonable notice to the other Justices, after they have publicly committed themselves to a disposition of the case that does not, of course, account for the late-breaking opinion, and (2) the surprise revision, meaning a Justice’s significant alteration of an opinion after other Justices have publicly committed themselves, presumably at least in part in reliance on the original version.
As a practical matter, Justices who want the last word can always get it, because there is no stopping them from opining on whatever they want. But as an equally practical matter, countervailing forces tend to frustrate efforts to get the last word. A last-word opinion, it turns out, is bad for everyone. It does not achieve the results sought by its author, and it does tend to harm the author. And it usually harms the Court as well. Part I of this article offers five examples of this last-word dynamic. Part II points out similarities among those cases and suggests s few conclusions, including explanations for the persistence of this sort of behavior. Part III considers measures to prevent these seemingly rare but invariably useless and harmful frolics.