Scalia v. the Blogosphere: Gaffe sparks partisan outrage

Correction: An earlier version of this article rendered the name of a 2001 case, Whitman v. American Trucking Associations, incorrectly with “Association” singular. This version has been corrected. An earlier version also

The Case of the Scalia Mistake appears to have almost run its course at the Supreme Court.

Now, those who don’t spend much time analyzing the justices’ work or hanging out in law school faculty lounges may have been unaware that the Case of the Scalia Mistake had even begun.

But it carries some lessons about partisan outrage, the swiftness to assign blame and maybe even a bit about karma.

Here’s what happened:

In a boisterous 21-page dissent from last Tuesday’s decision approving the Environmental Protection Agency’s cross-state pollution control rules, Justice Antonin Scalia made an embarrassing mistake.

He wielded one of the court’s precedents as a weapon to bash the EPA as blasé about following the letter of the law and his colleagues as hypocrites — and then got the facts of the case wrong.

Worse: Scalia himself had written the majority opinion in the 2001 case he mischaracterized.

Even worse: Scalia, who was joined in dissent in the 6 to 2 ruling by Justice Clarence Thomas, read parts of his often-sarcastic opinion from the bench to ensure that EPA v. EME Homer City Generation got more attention.

Careful what you wish for.

Within hours, Harvard law professor Richard Lazarus read the opinion online, spotted Scalia’s mistake and called attention to it on a listserv of environmental law professors.

The justice wrote that in the 2001 case, the EPA had advocated a cost-conscious approach to setting air quality standards that the court found was not authorized in the Clean Air Act. Lazarus noted that it was industry, not the agency, that had asked the court to consider costs.

Jonathan H. Adler, a law professor at Case Western Reserve, asked Lazarus if he could blog about it, and by mid-afternoon there was an article about the “noticeable error” on the legal blog The Volokh Conspiracy on washingtonpost.com.

By Wednesday morning, the opinion on the Supreme Court’s website had been changed.

Gone was Scalia’s snarky subhead “Plus ça Change: EPA’s Continuing Quest for Cost-Benefit Authority,” a reference to the French term that is most often translated as “the more things change, the more they stay the same.”

In its place, the bland: “Our Precedent.”

A sentence in the original dissent — “This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation” — had been rewritten. “This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation,” it now read.

The quiet correction came after Lazarus took heed of the fine print on the so-called slip opinions issued by the court. It says the ruling is subject to change and “readers are requested” to notify the court “of any typographical or other formal errors,” so that corrections can be made before the opinion is published in the United States Reports.

But that was the only thing quiet about what happened next.

“Antonin Scalia’s Blunder Is Unprecedented, Legal Experts Say,” thundered the blog at the liberal Talking Points Memo. The New Republic was no more restrained: “Scalia’s Epic Blunder Exposes His Partisan Hackery.”

The pieces were as bombastic as, well, a Scalia opinion.

One of the things that made the overheated takedowns so gleeful was Scalia’s reputation as the court’s most acidic — and funny — writer. His no-holds-barred dissents are so treasured by believers that they have been gathered in a book.

What Justice Ruth Bader Ginsburg called Scalia’s “vigorous” dissent last week was no different.

The court’s longest-serving member was typically dismissive of the majority’s reasoning that the EPA could consider costs, saying it was pulled from thin air. “Look, Ma, no hands,” is how he described it.

That’s why a mistake that might have been a footnote from another justice received such attention, Lazarus said.

“Scalia’s error was made very loudly and emphatically, surrounded by all rhetorical trumpets blaring,” Lazarus later wrote.

The professor, a scholar of the court and practitioner there, thinks Scalia’s was a “really big mistake, embarrassing mistake.” But it did not undercut the substance of Scalia’s dissent, with which Lazarus disagrees, that the law does not provide the agency the leeway to consider costs.

Those on the right have mostly had to just let Scalia take the hit. Ed Whelan writes about the court for The National Review and is fiercly protective of Scalia, for whom he once clerked. While he denounced “Anti-Scalia Derangement Syndrome,” he agreed turnabout is fair play.

The “gaffe,” Whelan wrote, “gives Scalia’s critics ample occasion to deride the error, and I won’t fault them for having fun doing so, as I won’t dispute that I and others would likely be doing the same for a blunder by a liberal justice.”

Speaking of former clerks, there has been grim humor that the mistake might have meant the addition of one more person to that category — “Here at Harvard, we’re hoping it was a Yale clerk,” joked Lazarus.

But Adler says he wouldn’t blame a clerk; the rhetoric is distinctly Scalia’s. And let’s not let the justices off the hook.

One of Lazarus’s students, Gabe Daly, discovered that a liberal justice, John Paul Stevens, cited the 2001 case, Whitman v. American Trucking Associations, in a 2009 opinion. He made the same mischaracterization of the facts that Scalia did.

Presumably, every one of the current justices — save Justice Samuel A. Alito Jr., who recused himself from the case — missed Scalia’s mistake when they read his dissent before the decision was rendered.

Certainly that was true of Thomas, who joined Scalia, and Ginsburg, who specifically addressed in her majority opinion why the Whitman precedent did not carry the day in the current case.

Is it possible that one of the justices noticed Scalia’s mistake and decided to let him hang himself?

“I must admit such a thought crossed my mind,” Lazarus said in an interview.

He concluded that a justice would not do such a thing. Of course not.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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