Antonin Scalia’s Blunder Is Unprecedented, Legal Experts Say

Supreme Court Justice Antonin Scalia responds to a question during his appearance in part of a lecture series at Tufts University, Wednesday, Oct. 2, 2013, in Medford, Mass. Scalia, who has served on the nation's hi... Supreme Court Justice Antonin Scalia responds to a question during his appearance in part of a lecture series at Tufts University, Wednesday, Oct. 2, 2013, in Medford, Mass. Scalia, who has served on the nation's highest court since 1986 following a nomination by President Ronald Reagan, spoke about interpreting the U.S. Constitution. (AP Photo/Josh Reynolds) MORE LESS
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Justice Antonin Scalia’s factual error in a dissenting opinion Tuesday has become the talk of the legal community as experts puzzle over the extraordinary nature of the Reagan-appointed justice’s blunder, which the Supreme Court quietly corrected as of Wednesday morning.

It’s common for the Supreme Court to make typographical corrections and insubstantial edits to a decision after its release. But it’s exceedingly rare to see a factual error that helps form the basis for an opinion. Legal experts say Scalia’s mistake appears to be wholly unprecedented in that it involves a justice flatly misstating core facts from one of his own prior opinions.

“This is a topic I know fair amount about, and I do not know of any other instance when a Justice has mischaracterized one of his own prior opinions, let alone in such a loud fashion and when he is otherwise criticizing others for their blunders,” said Richard J. Lazarus, a Harvard law professor. “I strongly doubt it has ever happened before.”

“I have seen sloppy footnoting before but nothing this bad,” said Garrett Epps, a constitutional law professor at the University of Baltimore.

Dan Farber, a law professor at the University of California, Berkeley, called it “an unusually major mistake, and all the more surprising because Scalia wrote the American Trucking opinion” that he mischaracterized in Tuesday’s ruling.

Scalia was dissenting from a 6-2 decision upholding the Environmental Protection Agency’s authority to regulate cross-state coal pollution. To help back up his judgment, he cited a 9-0 opinion he wrote in 2001 called Whitman v. American Trucking Association. But the EPA’s stance in that case was the exact opposite of what Scalia said it was in Tuesday’s opinion.

It’s not the first time a justice has erred. In 2008, a majority opinion written by Justice Anthony Kennedy mischaracterized federal law when ruling unconstitutional the death penalty for raping a child. His opinion argued that the death penalty for such a crime existed in just six states and not on a federal level. That claim was false, as the New York Times reported afterward: Congress had passed a law two years earlier saying child rape was subject to the military death penalty. The Court subsequently issued a corrected opinion with a footnote noting the change, unlike this week when its correction came surreptitiously and without notice.

Lazarus said Kennedy’s error was “very different” as it was prompted by a misrepresentation of federal law by the U.S. Solicitor General, on whom the Court “should be able to rely” for such matters. “That was the Solicitor General’s mistake, more than the Court’s,” he said.

Epps recalls that the error in Kennedy’s opinion was “a big deal in constitutional law circles” but not as bad as Scalia’s mistake this week: “It’s almost as embarrassing not to know federal law as it is not to know your own opinion.”

Scalia, 78, is the longest-serving member of the Supreme Court, appointed by Ronald Reagan in 1986. His dissenting opinion in Environmental Protection Agency v. Homer City Generation was joined by Justice Clarence Thomas.

“Of course, we all no doubt make mistakes in what we write, including big ones,” said Lazarus, who told TPM he formally notified the Supreme Court of Scalia’s mistake and suggested revisions. “But, our stuff is not subject to the same level of scrutiny because we are not, after all, Supreme Court Justices.”

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  1. Can he officially be considered to be in his dotage now? Or is that agist?

    I guess it would be pointless for call for him to resign, and Thomas, too. After all, he signed the dissenting opinion without even checking its facts?

  2. I think this is the first obvious sign that Scalia’s been going senile for a while now.

    Expect many more in the future, unless his fellow Justices start to cover for him. Unless that’s exactly what they’ve been doing for several years now, and he just bit the bullet in this one because he was the sole dissenting Justice (MiniScalia aka Thomas doesn’t really count).

  3. The problem for Scalia is that he’s said, repeatedly, that he would step down once he felt he could no longer perform his duties as justice. Of course EVERYBODY in the political circles he moves in will be urging him to stay on until a Republican President can replace him–but it’s looking like the next Republican President could be a long ways off. And quite certainly more than two years off. His condition, whatever it is (and there’s no way this is just a simple memory glitch) can only degrade over that much time.

    I’m no more a doctor than I am a lawyer, but I’ve noted distinct changes in his personality in recent years–he’s always been brusque, sarcastic, but not outright wacky. Lately he’s been pretty wacky–like he’s lost any sense of what’s appropriate for a man in his position. Like he’s actually become a somewhat different person. I really do suspect he’s had a small stroke that has impacted brain function. His family medical history would tend to bear that out. His father died of a stroke in 1985.

  4. William O. Douglas stayed on the court after a stroke had largely incapacitated him, and even attempted to continue to participate in court business after his retirement and replacement by John Paul Stevens. After the stroke but before his retirement, his fellow justices agreed to postpone till the next term any decisions close enough to be affected by Douglas’ vote. After his retirement the sitting justices had to unanimously sign a formal letter informing Douglas that his service at the court was at an end before he finally left.

    I can’t imagine Scalia agreeing to retire and be replaced by an Obama nominee for any reason, certainly not because of issues of mental capacity. He’s nowhere near as far gone as Douglas was by the end (even though he’s older). Nor do I see the rest of the right wing of the court agreeing to be emasculated by losing his vote. This could get ugly.

  5. An old legal adage: “If the facts aren’t on your side, argue the law. If the law isn’t on your side, argue the facts. If neither is on your side, bang on the table.” In Scalia’s case, the last sentence should conclude: “make stuff up.” As an aside, some law clerk is probably going to be looking for another job.

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