Justice Scalia is not the only one making errors

Legal reporters and pundits have had a field day with Justice Scalia’s embarrassing error in his EPA v. EME Homer City Generation dissent.  It was a significant mistake, and one I’m quite surprised no one on the Court caught before the opinion was released.  And whether it was more or less serious than prior Court errors, such as Justice Kennedy’s mischaracterization of federal law in Kennedy v. Louisiana, this appears to be the first time a justice has made this sort of blunder. (For those curious, here’s the original opinion, and here’s the corrected version.  The relevant passages are on page 12 of the dissent.)  Intent on adding some his signature rhetorical flourish to his dissent, Justice Scalia forgot to make sure he got his facts right.

Yet some pundits have been so quick to take after Justice Scalia that they’ve made blunders of  their own.  Exhibit A is Brian Beutler of The New Republic, who wrote an article on the subject titled: “Scalia’s Epic Blunder Exposes His Partisan Hackery.” Tweeting his article, Beutler wrote “Scalia failed a test we’d normally apply to political opinion journalists.” Yet Beutler may have been too quick to hit send on his computer too.

Beutler’s article on Scalia’s “epic blunder” begins:

Antonin Scalia screwed up big time, and seemingly every elite American law scholar is completely aghast.

In the course of dissenting against the six-justice majority, which affirmed the EPA’s authority to regulate coal emissions that cross state lines, Scalia pulled a gotcha by suggesting that the Court’s ruling contradicted a unanimous 2001 opinion in another case about the agency’s regulatory authority.

But he got it all completely backwards. The two rulings are entirely consistent. Scalia had simply misremembered the issue.

Beutler goes on to quote Berkeley’s Dan Farber, who characterizes the mistake properly, but Beutler’s set up is wrong.  Justice Scalia’s error was not to misrepresent the holding of the prior decision (American Trucking) but to misrepresent the position of one of the parties.  This was an embarrassing error, but it is not particularly relevant to the holding of either case, nor does it bear upon whether the two holdings are consistent with one another.

In American Trucking the Court held that the relevant provisions of the Clean Air Act precluded the consideration of costs in setting National Ambient Air Quality Standards and in EME Homer City a majority of the Court held that the EPA could consider costs in allocating emission reduction obligations among upwind states, while Justice Scalia disagreed.  Justice Scalia apparently wanted to tweak the majority for an alleged inconsistency, but the alleged inconsistency concerns statutory interpretation, not which parties made which arguments.  In both cases, Justice Scalia’s position was that the relevant statutory language precluded the consideration of costs, so whether it was the EPA or industry that wanted the agency to consider costs makes no legal difference.

The bottom-line: Justice Scalia made an embarrassing mistake (one that I’m quite surprised no one else on the Court caught).  Yet in his zeal to pile on, Beutler made a mistake too.  Now I admit this may be the sort of technical minutae that only matters to us admin-law-nerd-types (especially those of us that worked on briefs in American Trucking), but if you’re going to assail someone for their errors, I think it’s important to get the story right. As Beutler himself notes: “Reporters are familiar with the maxim that if you’re going to pull a fact check, you better be 100 percent correct, or prepared to endure tremendous ridicule.” Oops.

Justice Scalia’s error appears to have been that he was too quick to remember the facts in a way that reinforced his desired narrative.  The change in the section subheading on page 12 of his dissent certainly suggests as much.  Yet it appears to me that Beutler’s doing the same thing.  The point of Beutler’s article is that Justice Scalia’s error shows how “Scalia has been operating as a GOP henchman in a black robe for years and years now .”  Yet Beutler ignores cases in which Justice Scalia has upheld the controversial regulatory initiatives of Democratic Administrations (as in American Trucking itself) or laid down rules that expanded the Obama Administration’s regulatory flexibility (as in FCC v. Fox Television Stations and City of Arlington v. Texas).  Justice Scalia gets plenty of things wrong, in my opinion, but he does not reflexively oppose the Obama Administration or vote to constrain regulatory agencies.

Beutler gets on such a roll that he not only ignores the whole of Justice Scalia’s jurisprudence on statutory interpretation and administrative law, he also draws sweeping conclusions about Scalia’s error that demonstrate he doesn’t understand the nature of Justice Scalia got wrong.

In opinion journalism (as opposed to fact checking) opportunistic inconsistency (as opposed to imperfect diligence) is the mark of a hack. It’s a big challenge for people who write opinions for a living to keep track of a career’s worth of their own polemics, but an honest pundit will either account for changing views, or maintain old opinions whether or not they conflict with normative or partisan preferences. That way, even if he forgets his columns from a decade ago, he won’t be caught in embarrassing contradiction.

Yet contrary to Beutler’s claim, Scalia wasn’t “caught in a contradiction.”  He didn’t contradict his prior opinion at all. He just misrepresented the position of a party in the case — a party that, incidentally, was both a petitioner and respondent in the case.  However bad Justice Scalia’s mistake — and it was bad — it was not what Beutler describes.

Beutler concludes:

And as long as we’re applying journalistic tests to justices, the Court changed Scalia’s dissent without any fanfare or formal correction after outside observers spotted his blunder.

Another error.  Harvard law professor Richard Lazarus appears to have been the first to notice Justice Scalia’s mistake, pointing it out to several of us on an environmental law professor listserv.  After spotting the mistake, Professor Lazarus informed the Court in accord with its established procedures.  And when the opinion was corrected, Professor Lazarus received a formal notice of the change, again in accord with the Court’s usual practice.

Homer keeps nodding.

UPDATE: Brian Beutler tweets that “I just didn’t write what you said I did.” I think the quotes above are clear, as are other portions of this article which make misrepresent the nature of Justice Scalia’s error. Here’s another.  After linking to an article showing how Charles Krauthammer argued in favor of eliminating the filibuster in 2005 and against it in 2009, Beutler suggests Justice Scalia in a similar inconsistency. He then writes: “But Charles Krauthammer is just a writer. Scalia makes law. I can’t think of a more damning indictment of a Supreme Court justice than failing a consistency test that normally applies to opinion journalists.”  Yet, as noted above, Justice Scalia was not caught being “inconsistent.” He was caught mischaracterizing the position taken by the EPA in a prior case.  However embarrassing this error – and it’s embarrassing – it has nothing to do with whether Justice Scalia was consistent.  Indeed, in both cases he took the position that the Clean Air Act precludes the EPA’s consideration of cost.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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