Is Scalia Phoning it in, Senile, or Maybe Being Gaslighted?*

In a recent dissent on an environmental regulation case, EPA v. EME Homer City Generation, L. P., Antonin "Fat Tony" Scalia completely mischaracterized a precedent from the last decade, Whitman v. American Trucking Assns., Inc. in 2001.

It is even more bizarre, because Scalia wrote the unanimous decision that he so grossly mischaracterized:

………

Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday to uphold the Environmental Protection Agency's authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority's decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.

"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."

"Scalia’s dissent also 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," Farber wrote on the environmental law and policy blog Legal Planet. "This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! 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. Either way, it's a cringeworthy blunder."

Doug Kendall, the president of the Constitutional Accountability Center, a liberal legal advocacy group, said the error was mystifying and very unusual for a Supreme Court justice.

I've been thinking about this for a while, and seeing that I do not have much in the way of legal chops,^† I didn't really have much to add, until I read Salon's followup on this snafu, and this line, from noted Attorney Dan Farber jumped out:

Scalia’s dissent also 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! 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. Either way, it’s a cringeworthy blunder.

[NOTE: After this was posted, the opinion on the Court's website was revised to eliminate Scalia's error. Of course, as corrected, the case no longer fits Scalia's overall thesis of the "unelected officials" trying to override Congressional policy.]

(emphasis original)

Think about the sentence, "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. Either way, it’s a cringeworthy blunder."

I can see a clerk, either one of his own, or that of another justice, experiencing Scalia up close, and deciding that he's lost it, and then giving Tony a little shove out the door.

It's not much, but you can bet that people in the legal world are wondering if Scalia suffered a small stroke or something, and this will adversely affect reputation.

I think that some of his friends might start suggesting that it is time for him to retire.  After all, he'll never be Chief Justice.

Certainly, I believe that his brain has been damaged by overexposure to bile for years.

^*A way of subtly psychologically torturing someone to make them doubt their sanity.
^†I'm an engineer, not a lawyer, dammit!^‡
‡I LOVE IT when I get to go all Doctor McCoy!!!