Everyone makes mistakes, but when it comes to Supreme Court jurisprudence, very few make the kind of mistakes Supreme Court Justice Antonin Scalia made in his dissent this week on the Clean Air Act.
The decision upheld an Environmental Protection Agency regulation managing interstate air pollution. In his dissent, Scalia accused the six justices who upheld the rule of writing a decision that “feeds the uncontrolled growth of the administrative state at the expense of government by the people,” and of approving an “undemocratic revision of the Clean Air Act.”But Jonathan Adler, a professor at the Case Western University School of Law and a writer for the conservative law blog Volokh Conspiracy, noted that Scalia’s dissent misstates the context of a 2001 Clean Air Act case, Whitman v. American Trucking Assns., Inc., in which Scalia himself actually wrote the opinion.Scalia identified the case as one in which the EPA sought to consider cost-effectiveness in developing regulations when the reverse was true.
Sahil Kapur explained that it’s” exceedingly rare to see a factual error that helps form the basis for an opinion.” How rare?
“This is a topic I know fair amount about, and I do not know of any other instance when a Justice has mischaracterized one of his own prior opinions, let alone in such a loud fashion and when he is otherwise criticizing others for their blunders,” said Richard J. Lazarus, a Harvard law professor. “I strongly doubt it has ever happened before.”
The larger significance, of course, is not about pointing and laughing at a justice’s unfortunate, and perhaps unprecedented, misstep.
Rather, as Brian Beutler noted, the fact that Scalia tried to take a shot at his colleagues and managed to get the entire story backwards, even when discussing a ruling he personally wrote, speaks to “a recognition among critics and even some former admirers that Scalia has been operating as a GOP henchman in a black robe for years and years now.”
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. Even if he didn’t have an army of clerks tasked with catching errors large and small, Scalia only pantsed himself because he lacks the integrity of a decent liberal or conservative pundit.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. Scalia’s already confirmed to a lifetime position on the Court, but I really wonder if the Senate would overlook it if a future nominee committed an error of such significance.
It wasn’t too long ago that Scalia had cultivated a distinct reputation: he was a far-right jurist who nevertheless enjoyed the respect of the legal community, regardless of ideology.
Those days are over and Scalia has become something a punch-line to a sad joke. His Holocaust references; his over-the-top dissent in the DOMA case; his political antics that appear to be an audition for a slot on “Fox & Friends” – it’s all been a bit much. Any sense of stature or credibility Scalia once has has faded away, replaced with a bumbling caricature.
Two years, a constitutional law professor at UCLA said the conservative justice has “finally jumped the shark.” Adam Serwer joked at the time, “If you put Scalia on ‘Fox and Friends’ you’d have to squint to notice the difference.”
And yet, the right-wing justice can’t seem to help himself. He jumped the shark, circled, and decided to jump it again. It’s hard to watch.