Scalia Makes Huge Error in EPA Opinion


Justice Scalia made a huge factual error in his dissenting opinion in the EPA case handed down earlier this week, claiming that the EPA’s position in a 2001 case in which he wrote the ruling was the exact opposite of what it actually was.

Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday to uphold the Environmental Protection Agency’s authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority’s decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.

“This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting [National Ambient Air Quality Standards],” Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA’s position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

It isn’t unusual for a typo or an incorrect citation to find its way into a Supreme Court opinion, but a major misstatement of an earlier case? That appears to be unprecedented. It’s now been changed, but without acknowledging that the dissent is at least partly based upon that error:

As of Wednesday morning, the Supreme Court has corrected Scalia’s opinion. The relevant passage now excludes his erroneous mention of the EPA and replaces the header with a new one that drops an EPA reference.

The new passage reads as follows: “This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns.,Inc., 531 U. S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS.”

The old header was, “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” The new one reads, “Our Precedent.”

I would think more would be required here than just editing it out without some discussion of how that affects the reasoning of the dissent.

Comments

  1. lynxreign says

    Scalia is an embarrassment to the court and the US. He needs to step down or be impeached. There’s plenty of cause.

  2. Pierce R. Butler says

    SCOTUS is all about precedents.

    Do we have any precedents for a sitting justice going non compos mentis but refusing to resign?

    The possibilities for political tragicomedy abound.

  3. D. C. Sessions says

    Get serious, Ed. The “reasoning” of the dissent was and remains entirely post-hoc. Just as with Raich, the “bribes aren’t corruption as long as there’s no quid pro quo exchange” finance rulings, and the PPCA ruling (trying to keep the list short), Scalia comes up with the result he wants and tells a story to explain it.

  4. says

    Good luck on impeachment. Only one justice has ever been impeached, and that was something like 200 years ago and he was acquitted. Scalia would pretty mucb have to commit murder to get removed that way, I think. He sure as shootin’ isn’t going to step down willingly while there’s a Democrat in the White House.

  5. D. C. Sessions says

    Doesn’t matter even if he did step down — there’s no way the Senate will allow Obama to replace him. even before the Republicans take control next year.

  6. colnago80 says

    Re D. C. Sessions @ #5

    But if Scalia did leave the court, the conservatives would be down to 3 votes and Kennedy would no longer be the swing justice. At least until 2017 if a Rethuglican won the election that year.

  7. Michael Heath says

    Ed writes:

    I would think more would be required here than just editing it out without some discussion of how that affects the reasoning of the dissent.

    True but that would be inconsistent with how conservative Christians think when it comes to politics and religion. The conclusion doesn’t change when faced with inconvenient or falsifying facts, just the argument used to defend one’s predetermined conclusion.

    I realize liberals were not pleased when President Reagan nominated Antonin Scalia to the Supreme Court. The more interesting question to me was whether anyone used facts available at the time of his nomination to predict Scalia would predominately rely on structurally defective arguments in order to advance an ideological and partisan agenda. Behavior that has now been convincingly demonstrated.

  8. Michael Heath says

    lynxreign writes:

    Scalia is an embarrassment to the court and the US. He needs to step down or be impeached. There’s plenty of cause.

    Cite requested, from a credible source, that there’s “plenty of cause” to remove J. Scalia through the impeachment process. I haven’t encountered an iota of evidence; in spite of my holding all the current conservatives on the bench in almost complete contempt, particularly Scalia.

    I think you’d have a better leg to stand on by arguing we need to reform the standards used to remove sitting justices. But that argument would also have to a compelling argument on how we do so without introducing even more partisan pressure on to the justices.

  9. dharleyman says

    If it was Silver that banned Sterling, would it be Chevy Chase that ban Ford or would Mustang Sally be more appropriate. I just don’t know.

  10. says

    I agree with Michael Heath.

    Scalia is a piece of shit but being a piece of shit is not listed as one of the things which allows impeachment.

  11. says

    TPM quotes University of California-Berkeley law professor Dan Farber: “Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.”

    tl;dr “Either way, it’s his clerks’ fault, not Scalia’s.” Nice.

  12. Vicki, duly vaccinated tool of the feminist conspiracy says

    The constitution says judges “shall hold their offices during good behavior,” but I am fairly sure that’s about honesty, not competence.

    In practice, an impeachable offense is whatever congress thinks it is: there’s no list of “these things are grounds for impeachment” let alone “and nothing else is.” There’s no way you’d get enough votes to impeach for something like “wrote a dissent that showed memory lapses and an important lack of attention, and then tried to hide it.” Not even if it was another of Scalia’s dissents that was then used to support the side he opposed, as with the marriage cases.

  13. Pierce R. Butler says

    What about Scalia’s acceptance of thousands of dollars’ worth of gifts from political players, for the purpose of attending partisan political conniving conferences?

    Of course, that would entail charging C. Thomas as having equally participated in the Kock Bros’ generosity, but only in DC would that be considered a bug and not a feature.

    And for Congress to accuse anybody of such mischief would break hypocrisy meters across the planet, but we do have ample established precedent to call upon.

  14. Michael Heath says

    Vicki writes:

    In practice, an impeachable offense is whatever congress thinks it is . . .

    More precisely, the power to impeach is vested solely in the House, not all of Congress (Art. I, Sec. 2). The Senate has the sole authority to remove those impeached from office (Art. II, Sec. 3).

  15. John Pieret says

    Sorry, it’s hard to make a case that “being an asshole” is a “high crime or misdemeanor” warranting removal by impeachment.

  16. John Pieret says

    Pierce R. Butler @ 14:

    If we are talking about speaking fees at any events that could be called partisan or political (ACLU, anyone?) then we’d have to impeach the lot of them, If you have specific evidence of payments by any individuals or companies as quid pro quo for Scalia’s vote on any case, I and a lot of people would be interested.

  17. Suido says

    Having just done a quick read up on the cautionary tale of Samuel Chase, it seems to me like he was impeached for very similar reasons why Scalia should be impeached: factual errors in judgement that support a partisan position, contradictory rulings in different cases that support a partisan position, inflammatory partisan language in the public sphere. Just from a reading of this blog, there seems to be substantial case evidence of his partisanship, enough that the case could be built.

    Chase’s acquittal by the senate seems to have been a bit of a deal, in which SCOTUS agreed to do better at non-partisan behaviour and rulings in exchange for not being threatened with impeachment every time there was a blatantly partisan ruling. A gentleman’s agreement, though I’d prefer to use a gender-neutral equivalent of that term.

    It seems to me that Scalia has forgotten the lessons of Chase’s impeachment, and needs a reminder. Via impeachment. He’ll be acquitted (no chance of a senate supermajority voting to remove him), but the lesson will be reinforced and remembered, hopefully for a bit longer than 210 years this time.

  18. says

    “A gentleman’s agreement, though I’d prefer to use a gender-neutral equivalent of that term.”

    Assholes” accommodation? Cocksuckers’ Compact? Motherfuckers’ memorandum of Agreement?

  19. eric says

    I do not consider this to be as egregious an error as many of the others above. AIUI all justices employ clerks to help research and draft opinions. The justice lays out the main argument and the critical precedents, etc., but the clerks fill in the details. This could be a clerk error. Look for a clerk firing in the next week or two. Of course even if there is a firing, it’s entirely possible that some clerk is a victim here, too. Scalia remembers wrong, insists a clerk write a certain point, he/she does, and Scalia turns out to be crazy wrong.

  20. yoav says

    I know the general rule is don’t attribute to malice what can be easily explained by incompetence but from anything I hear of Scalia he’s an asshole but not an idiot so is it not possible he was deliberately lying, especially since he know that there is no conceivable scenario in which he will have to pay a price if he get caught.

  21. StevoR : Free West Papua, free Tibet, let the Chagossians return! says

    @19. Steve Morrison : Thanks for that list and article. Interesting if someewhat depressing reading.

    I find it hard to believe there isn’t already a retirement age set for judges as, I gather, there is here in Oz.

  22. StevoR : Free West Papua, free Tibet, let the Chagossians return! says

    @ ^ NB. On wiki-checking I found here :

    http://en.wikipedia.org/wiki/High_Court_of_Australia

    a confirmation – High court justices in Australia must retire at 70.

    Justice Antonin Scalia (from his wikipage) is 78 so would be long since retired if he was a Judge here.

    Of the other Judges – John Roberts is aged 59, Clarence Thomas 65, Samuel Alito 64, Ruth Bader Ginsberg 81 (!), Stephen Breyer 75, Sonia Sotomayor 59, Elena Kagan 54 and Anthony Kennedy is 77.

    So if the US had a Judicial mandatory retirement limit of 70 it would mean no more Kennedy who sometimes votes liberal other times not, no more Scalia for the conservatives but also nomore Ginsberg or Breyer. Although Obama would if done now be the one to replace them. (Well choose theri replacements. guess its unlikely Obama will become a future Supreme Court Justice!)

  23. StevoR : Free West Papua, free Tibet, let the Chagossians return! says

    @25. ^ dingojack : True. Well played. Imagine if Obama did how the wingnuts would react!

    @24. Source for info on the USA’s Supreme Court is from here :

    http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States

    Then the various individual links to the members for the Justices ages.

    Note also the retried Justices section there :

    There are currently three living retired justices of the Supreme Court of the United States: John Paul Stevens, Sandra Day O’Connor, and David Souter. As retired justices, they no longer participate in the work of the Supreme Court, but may be designated for temporary assignments to sit on lower federal courts, .. (snip)… The fear of mental decline and death often motivates justices to step down.

    Stevens is 94, O’Connor 84 and Souter 74.

    Of course age is a lot more than merely chronological and not necessarily always the key factor in assessing competence etc ..

  24. gshelley says

    Out of curiosity, if a judge was incapacitated (say through a stroke), and incapable or unwilling to retire, is there still no way or replacing them?

  25. eric says

    @27 – the Constitution is essentially silent on replacing judges, mentioning only that they will serve so long as they show ‘good behavior.’ I guess Congress could impeach a justice to remove them. All but one justice has left the supreme court through voluntary retirement, voluntary resignation, or death. The one was a recess appointment in the 1800s who was not approved by the Senate when they came back in session (so he was on the court less than a year).

  26. dingojack says

    Surely they could just pass a law. ‘Necessary and proper’ and all that.
    Dingo

  27. colnago80 says

    Re gshelley @ #27

    Justice William O. Douglas was effectively incapacitated by a stroke but strongly resisted retiring from the court.

  28. Pierce R. Butler says

    John Pieret @ # 17: …, If you have specific evidence of payments by any individuals or companies as quid pro quo for Scalia’s vote…

    Well, if you want to use the extremely lax standard required by this current court for Congressional corruption, the closest I can offer is Virginia Thomas’s liberal paychecks from Heritage Foundation.

    However, despite Justice Kennedy’s ultranaive opinion that only cash-pro-vote constitutes or even looks like corruption, , Thomas & Scalia’s participation, all expenses covered, at a Koch-sponsored Republican donors conference in Palm Springs stinks on ice.

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