Brown, other people who follow the legal scene

[jj]

http://talkingpointsmemo.com/dc/antonin-scalia-blunder-unprecedented-epa

"Scalia's blunder unprecedented".

Legally speaking, this is a few orders of magnitude over my pay grade.

Those of you who follow SCOTUS, what do you think?

 

[Checkmite]

While we wait for more informed opinions, I have to say I'm a bit annoyed that I had to read fully half of that article about Scalia's error before the it bothered to describe what the error actually was.

 

[tyr_13]

From the article,

Scalia was dissenting from a 6-2 decision upholding the Environmental Protection Agency's authority to regulate cross-state coal pollution. To help back up his judgment, he cited a 9-0 opinion he wrote in 2001 called Whitman v. American Trucking Association. But the EPA's stance in that case was the exact opposite of what Scalia said it was in Tuesday's opinion.

That's actually pretty bad all on it's own, but I'd have to read the opinions to know exactly how bad. As it's characterized as 'not knowing your own opinion', that's a major thing. Limiting the impact of the mistake, he was dissenting. (No points for guessing who the other dissent would be in a case about cross state coal power plant pollution...)

I'm not exactly a Scalia fan and would love to see him retire.

 

[Checkmite]

I don't see Scalia retiring over such an error. I'm not a Supreme Court enthusiast, but I remember enough about it from high school government class to know that dissenting opinions are basically "that's nice" but largely unimportant. They have no force of law, do not set any legal precedent of themselves, and even the reasoning contained within them is mostly useless given that the SC's final ruling basically renders it factually less-compelling than that used in the majority opinion.

 

[tyr_13]

Oh I didn't mean to imply that he would retire because he made such a mistake. Far from it, Scalia seems to be the type who wouldn't give a rat's ass about such an error and hand wave it. I was just pointing out my bias. I detest much of the reasoning he employes, the way he seems to be heavily outcome based, and hate it when I agree with his conclusions. This is because I don't like how he gets to those conclusions and it makes me feel dirty when I agree with him...

 

[jj]

While we wait for more informed opinions, I have to say I'm a bit annoyed that I had to read fully half of that article about Scalia's error before the it bothered to describe what the error actually was.

Agreed. I kept thinking "well? Well? WELL? WHAT?".

I don't know enough about the subject to know if anything about the lack-of-a-good-summary is any good.

 

[Loss Leader]

It was a dissent, so it hardly matters. And Scalia won't acknowledge anything other than to tell people to go jump in a lake. I image some unnamed law clerk is on his way to the private sector.

 

[DevilsAdvocate]

Meh. It’s egg on his face. An embarrassing goofy gaffe. But it doesn’t look consequential, even as a basis for his dissent.

It appears the issue was whether EPA should consider costs in formulating certain regulations. I suspect someone dug up the American Trucking case for Scalia as a previously ruling against the EPA considering costs. The case was either misrepresented to him or he made the assumption that because the ruling was against the EPA considering costs (like they are arguing for in the case at hand) that the ruling was against EPA. It was actually a ruling against Trucking who wanted EPA to consider costs. It was still a ruling against EPA considering costs. Who was on which side doesn’t matter much.

 

[Nova Land]

The poster pollwatcher over at Daily Kos had a good diary about this a few days ago: Uh-Oh, Scalia Screws Up Royally. Time To Retire.

The Daily Kos diary cites the same source as the OP of this thread. But the diarist there took the time to excerpt the relevant portions of the TPM article, making it much easier to understand what happened. That's a model I would highly recommend to people here when writing OPs.

Here's the key portion of pollwatcher's diary:

"This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA's contention that it could consider costs in setting [National Ambient Air Quality Standards]," Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA's position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

The conservative justice's error was noted by University of California-Berkeley law professor Dan Farber, who called it "embarrassing" and a "cringeworthy blunder."

But wait, it gets better.

"This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won!

...

"It is a mind-blowing misstatement of a basic fact of the American Trucking Association ruling which Justice Scalia himself wrote. And it's not just a stray passage -- it's the basis for an entire section of the dissent,"

 

[Nova Land]

The TPM article cited in the OP is a good introduction to this topic; Nina Totenberg over at NPR also has a good explanation of what happened, along with additional details that the mistake has now been scrubbed clean:

Nino's No-No: Justice Scalia Flubs Dissent In Pollution Case

... Here's what happened. On Tuesday, the Supreme Court announced its 6-to-2 decision upholding the Environmental Protection Agency's regulations governing power plant emissions that blow pollution across state lines.

Scalia, joined by Justice Clarence Thomas, dissented, and he took the unusual step of announcing his disagreement from the bench for emphasis.

His dissent rested in large part on his contention that the Clean Air Act does not allow the EPA to use a cost-benefit analysis in setting cross-state anti-pollution regulations. And he cited as authority his own 2001 majority opinion for a unanimous court in Whitman v. American Trucking Assns., Inc ...

The problem is that the EPA position was exactly the opposite in that 2001 case. The agency maintained that it did not have to consider costs in setting regulations, and it was industry — the trucking association — that wanted costs to be considered. Moreover, the issue involved a different part of the Clean Air Act.

Bottom line: Scalia inverted the 2001 facts to support his 2014 dissenting argument.

The scholarly blogosphere was agog, calling it a "cringe-worthy" mistake, an "epic blunder," a "mind blowing misstatement" of fact, and "hugely embarrassing."

Scalia, and the court, moved quickly to correct the mistake. By Wednesday morning, the wording and the subhead of the passage had been changed ...

 

[Nova Land]

There are also several good items about this at Legal-Planet.

Apparently this item by Dan Farber was one of the first to call attention to Scalia's mistake regarding the previous decision in Whitman v. American Trucking.

And as this follow-up by Ann Carlson explains, it was Harvard law professor Richard Lazarus who then formally notified the court of the error:

... Lazarus invoked the Court’s formal rules and procedures and wrote it a letter pointing out the mistake. Not only did a new version of the Scalia dissent magically appear this morning on the Court’s website, ... so too did a new heading. Yesterday’s opinion contained a heading that read, “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” Today’s opinion replaced that heading with “Our Precedent.” A bit less snappy but at least it’s accurate.