Justice Scalia And The Case For Proof-Reading

The legal world was abuzz last week when, following a Supreme Court ruling in an EPA air pollution case, a close reading of Justice Antonin Scalia’s dissent revealed he  misrepresented a prior decision – a decision he himself had written. The Court ruled that the EPA could consider cost-effectiveness of emission controls in deciding how much pollution a state must reduce. Scalia originally wrote:

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.

The problem? That’s not the kind of argument the EPA is likely to make, and in fact it was the trucking industry that made it. Scalia’s dissent was “unusually sloppy’ and “hugely embarrassing, said U.C. Berkeley Law professor Dan Farber. “Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him,” Faber wrote. Within hours of posting the erroneous citation, Scalia’s decision was corrected on the Court’s website.

Though left-leaning law blogs were quick to pounce on the mistake – with some even calling for Scalia to retire – Ruth Marcus wrote for The Washington Post: “Scalia is doddering because he didn’t remember the specifics of a 13-year-old case? Please … You don’t have to be a senior to have a senior moment.” She did, though, add a note that all legal professionals may learn from the incident: “No mistake remains buried in the age of the Internet.”