It's a safe bet that one of Antonin Scalia's law clerks is having a very bad day, writes Nina Totenberg for NPR. That's because the justice made a glaring error yesterday in his dissent on an EPA case, getting his own majority opinion from 13 years ago backward. (Scalia's clerks generally write his first drafts, Totenberg explains, but even if Scalia himself wrote it, a clerk would have been expected to catch the gaffe.) In yesterday's case, Scalia faulted the EPA for factoring costs into regulation, adding that the court had rejected a similar effort 13 years ago and should do so again. "The problem," explains Sahil Kapur at Talking Points Memo, is that "the EPA's position in the 2001 case was exactly the opposite."
Dan Farber at Legal Planet elaborates:
- Scalia's dissent "contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted. This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won!"
The Supreme Court officially changed the wording of Scalia's dissent to reflect the correction, even changing the header from "Plus Ça Change: EPA's Continuing Quest for Cost-Benefit Authority" to "Our Precedent."