The legal press is up in arms over a factual error made by Justice Antonin Scalia in a Supreme Court decision this week. But Scalia isn’t alone among justices who’ve been corrected by academics and even a few bloggers.
In Scalia’s case, the problem in his dissenting opinion in EPA v. Homer was magnified by the fact that he mistaking categorized a decision he wrote himself in 2001 called Whitman v. American Trucking.
The miscue didn’t get by Harvard law professor Richard J. Lazarus, who took the step of formally writing the Supreme Court to correct the errors after Tuesday’s decision. Fellow law professors Jon Adler and Dan Farber also discussed the mistaken passage online, which led to more coverage from writers on the Supreme Court beat.
On page 12 of Scalia’s EPA v. Homer dissent, he wrote the following:
“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 NAAQS.”
Here is the plain-English interpretation: Scalia claimed the EPA, for a second time, wanted the Supreme Court to consider the cost-effectiveness of emission controls in figuring how much pollution a state must reduce. The first time was when the Court dealt with a similar EPA-led argument in 2001, he said.
But as Lazarus, Adler, and Farber pointed out, the EPA opposed this plan in 2001, and didn’t support it. It was the trucking industry that pushed for the plan in 2001.
“The worst part of it is that Scalia should know this because the author of the Supreme Court’s decision in Whitman v. American Trucking Assns was none other than Scalia,” Adler said on the Volokh Conspiracy blog.
Another blog, Talking Points Memo, had quotes from Lazarus about the mistake.
"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 Lazarus. "I strongly doubt it has ever happened before."
On Wednesday morning, the Supreme Court posted a revised version of Scalia’s dissent with the mistaken passage replaced with a more-general description, along with a new headline preceding the paragraph. The mistaken passage didn’t receive the honor of a footnote or other annotation.
And that is line with current procedures at the Court, since Supreme Court opinions contain notices that they are subject to revision before appearing in a compendium called the United States Reports, and that alert readers like Lazarus can notify a court official "of any typographical or other formal errors."
(Editor’s note: The older incorrect version of the opinion was still available in Google search as of Friday.)
Scalia himself, in a October 2013 interview with New York Magazine, likely identified part of the reason for the mistake, when he spoke about how he picked his law clerks.
“I like to have one of the four clerks whose predispositions are quite the opposite of mine—who are social liberals rather than social conservatives. That kind of clerk will always be looking for the chinks in my armor, for the mistakes I’ve made in my opinion. That’s what clerks are for—to make sure I don’t make mistakes,” he said.
NPR’s Nina Totenberg said Scalia is open about having his clerks write the first drafts of his opinions before he adds his own unique take and writing style.
“So, either the first-draft clerk got it wrong and Scalia didn't catch it, or the justice got it wrong and the law clerk didn't catch it. Either way, since clerks are first and foremost supposed to be a justice's backstop, somebody is — to put it in delicate terms — likely having anatomical changes made to his or her body,” Totenberg said.
In Scalia’s defense, he’s not the only justice to suffer the fact-checking gaze of academics and the occasional blogger.
In 2008, a military blogger pointed out that a majority opinion written by Justice Anthony Kennedy in the Kennedy v. Louisiana ruling about the death penalty in cases of child rape had a big factual error.
Justice Kennedy stated that a child rapist could face the death penalty in just six states — and not in any of the 30 other states that had capital punishment, and could not face death under the jurisdiction of the federal government, too.
Dwight Sullivan, a colonel in the Marine Corps Reserve, refuted that claim in a blog post. and pointed out that Congress did enact such a penalty two years prior to Kennedy’s ruling, pertaining to military legal cases. (The Supreme Court later declined to rehear the Kennedy v. Louisiana case.)
Another factual error in a Kennedy opinion came in a 2010 decision called Graham v. Florida, when the Court declared as unconstitutional giving juveniles life without parole for non-homicide crimes.
Kennedy said in his opinion that there were six convicts in the federal prison system serving life without parole sentences for juvenile non-homicide crimes.
In this situation, Acting Solicitor General Neal Katyal wrote in a letter that some information cited by Kennedy in the Graham v. Florida decision, was supplied to the Court by a federal official without Katyal’s knowledge, and Kennedy’s statement was inaccurate, because on further review the Solicitor General found no evidence such sentencing.
And last year, in a complicated technical decision about human gene patents, a majority opinion written by Justice Clarence Thomas had at least one error that has been corrected by the Court – in the opinion’s opening paragraph.
The phrase said that, “Scientists can extract DNA from cells to isolate specific segments for study. They can also synthetically create exons-only strands of nucleotides known as composite DNA (cDNA).”
The problem is that “composite DNA” doesn’t exist. The accurate term is “complementary DNA.” The mistake was pointed out online by several scientists. And the current version of the Myriad Genetics decision on the Court’s website has the corrected version.
“The definition is correct, the terminology, not,” said Ricki Lewis, a blogger with a PhD in genetics, at the time.
Forbes contributor Steven Salzberg, who is a professor at Johns Hopkins University School of Medicine, pointed out other issues with the Myriad Genetics opinion. In addition to the “complementary DNA” error, Salzberg believed there were a total of three errors about molecular biology in the opinion’s opening paragraph.
“I cannot pretend to know who they got to do their biology background research, but any genetics graduate student could have done far better,” he said.
Scott Bomboy is the editor in chief of the National Constitution Center.
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