Scalia Makes Error in Dissent While Citing Own Ruling
Court corrects wording once it comes to light
By John Johnson, Newser Staff
Posted Apr 30, 2014 7:38 PM CDT
Antonin Scalia in a file photo.   (AP Photo/Charles Rex Arbogast, File)

(Newser) – 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."

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May 1, 2014 1:10 PM CDT
May 1, 2014 6:57 AM CDT
JusticeDate of BirthAppointed bySworn in Antonin Scalia 3/11/1936 Age: 78 yr 1 mo Ronald Reagan 9/26/1986 Served: 27 yr 7 mo Anthony Kennedy 7/23/1936 Age: 77 yr 9 mo Ronald Reagan 2/18/1988 Served: 26 yr 2 mo Clarence Thomas 6/23/1948 Age: 65 yr 10 mo George H. W. Bush 10/23/1991 Served: 22 yr 6 mo Ruth Bader Ginsburg 3/15/1933 Age: 81 yr 1 mo Bill Clinton 8/19/1993 Served: 20 yr 8 mo Stephen Breyer 8/15/1938 Age: 75 yr 8 mo Bill Clinton 8/3/1994 Served: 19 yr 8 mo John G. Roberts 1/27/1955 Age: 59 yr 3 mo George W. Bush 9/29/2005 Served: 8 yr 7 mo Samuel A. Alito, Jr. 4/1/1950 Age: 64 yr 1 mo George W. Bush 1/31/2006 Served: 8 yr 3 mo Sonia Sotomayor 6/25/1954 Age: 59 yr 10 mo Barack Obama 8/8/2009 Served: 4 yr 8 mo Elena Kagan 4/28/1960 Age: 54 yr 0 mo Barack Obama 8/7/2010 Served: 3 yr 8 mo
May 1, 2014 3:15 AM CDT
proof positive that he's a right wing shill. How embarassing...