I’m glad people caught the error in Justice Scalia’s EPA v. EME Homer City Generation, L.P. opinion (see Jonathan’s post about this, and his follow-up post). But I think some of the criticism of the error — though not Jonathan’s criticism — has been rather over the top, and lacking a sense of perspective. Justices and their law clerks, like others, sometimes err. The errors should be corrected, but the presence of such errors generally isn’t particularly shocking.
Here’s one example from a celebrated case, Reno v. ACLU (1997), where the Court struck down the first Internet indecency ban (the Communications Decency Act). Justice Stevens’s majority opinion, joined by six other Justices, had to distinguish two prior cases that involved non-obscene sexually themed or vulgar material — Ginsberg v. New York (1968), which upheld a ban on selling sexually themed material to minors, and FCC v. Pacifica Foundation (1978), the famous “Seven Dirty Words” case that upheld a ban on “indecency” (including vulgarity) in over-the-air broadcasting. These were important precedents for the majority to distinguish, especially since the Pacifica indecency ban was in some ways quite similar to the CDA’s indecency ban.
Here is one thing that Justice Stevens’s opinion said in its analysis:
The breadth of the CDA’s coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities.
But this turns out to be wrong. The Ginsberg law, though it was limited to commerce in magazines, was not limited to commercial speech: Such magazines, even ones sold for money, do not qualify as commercial speech, a term that generally refers to commercial advertising. For instance, it’s well-established that a restriction on the sale of, say, Time magazine or New York Times subscriptions or books wouldn’t be treated as a “commercial speech” restriction, even though the sale of the works is itself a form of commerce; and that a magazine is pornographic doesn’t make it more or less “commercial speech.” (“Important commercial attributes of various forms of communication do not qualify their entitlement to constitutional protection…. Thus, in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., we explained: ‘… Speech likewise is protected even though it is carried in a form that is ‘sold’ for profit [citing, among others, a case involving sales of allegedly pornographic books]….’” City of Cincinnati v. Discovery Network, Inc. (1993) (Justice Stevens’ majority opinion).)
Moreover, the Pacifica regulation was not limited either to commercial speech or to commercial entities. The broadcast in Pacifica itself was noncommercial speech carried by a nonprofit, noncommercial radio station. And the lead opinion in Pacifica was written by Justice Stevens himself; indeed, it has long been seen as one of Justice Stevens’s most famous, and most controversial, opinions.
Nor was there indication that the Reno v. ACLU majority opinion was deliberately trying to redefine the terms “commercial speech” or “commercial entities.” As best I can tell, this was just an error, or perhaps two errors. Justice Stevens — a very smart man — and his clerks, doubtless very smart as well, made an error, which the other Justices and clerks didn’t spot.
It’s important to notice these errors, both so they can be corrected (the EPA v. EME Homer City error was, the Reno v. ACLU error wasn’t), and so that people remember that even Supreme Court opinions should not be trusted implicitly. Indeed, I give the Reno v. ACLU error as an example in my Academic Legal Writing book, to illustrate the proposition that law students writing law review articles shouldn’t rely on intermediate sources, but should read, quote, and cite the original source: If you want to talk about what Pacifica or Ginsberg involved, don’t just trust how a later opinion describes it, but go back to the original.
But it’s also important, I think, to keep a sense of perspective about the errors. Justices, left, right, and center, are people, and people make mistakes.