Justice Scalia Makes Epic "Cringeworthy" Blunder In Supreme Court Opinion

[kpete]

Justice Scalia Makes Epic Blunder In Supreme Court Opinion
SAHIL KAPUR – APRIL 30, 2014, 6:00 AM EDT
It's not often that a Supreme Court justice makes a factual blunder in a formal opinion.

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.

........................

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-Berkley 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."

MORE:
http://talkingpointsmemo.com/dc/antonin-scalia-error-supreme-court-dissent-epa

[gratuitous]

1. A feature, not a bug

Oh, you libruls and your so-called "principles"! Justice Scalia is so far advanced over your quaint notions of "judicial review" and "stare decisis" that you are like ants to his towering intellect. Perhaps that great philosopher quoted by Lewis Carroll in "Alice in Wonderland" came closest to expressing Justice Scalia's judicial outlook: When he uses a word, he decides what that word means, even if he used it in an entirely different meaning previously.

Years from now, historians will pore over Justice Scalia's corpus of judicial opinions and marvel (marvel, I say!) at how such a man could have sat on the nation's highest court.

[Demeter]

30. One in a series...I think he's getting senile. He was already arrogant.

[DirkGently]

53. Justice Scalia is losing his already tenuous grasp on reality. n/t

[GeoWilliam750]

83. Is there a mental competency test for federal judges?

To prevent senile judges from making terrible mistakes in people's lives.

Entirely serious here.

[DeSwiss]

91. There's an ''implied'' mental competency requirement, (Constitutional), but not a test.

Article 3 - The Judicial Branch
Section 1 - Judicial Powers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. link

Thus leaving examinations of behavior up to the Congress (meaning nothing will be done since only one justice has ever been impeached). And that ''Good Behavior'' clause also mean a lifetime appointment, which insures that insanity will reign since most are already a little loony (some are full loons) from the start. Because you'd have to be crazy to study law.

- The only people who love the law are rich lawyers and nuts like Scalia.

[Fortinbras Armstrong]

43. I am reminded of one of the reasons that the Framers of the Constitution

Made a specific definition of treason has to do with the arrest of Lord Montague in 1539 in the reign of Henry VIII. He was arrested for treason, and told the arresting officer that he had committed no treason. The officer replied, "Treason is what the King says it is."

[DeSwiss]

92. !

[MisterP]

72. they really DO think they're that much smarter than us--note the setup in Atlas Shrugged:

a handful of really important people, who do all the work, and a mob (always "teeming" or "roiling&quot of the other 99.99985% who rightfully die like sheep until we kneel and literally let them do what they want; the sickest fantasies can have the most appeal

[northoftheborder]

2. Scalia needs to retire before more goofs and bad decisions become the norm....

[Bernardo de La Paz]

18. GOTV, retain the Senate, get Obama nominees confirmed. nt

[riqster]

26. ^^^THIS^^^

[BlancheSplanchnik]

49. Yes. This. ^

Most important.

[IronLionZion]

88. Yes! GOTV! nt

[SwankyXomb]

47. Far too late for that.

[Major Nikon]

51. He's about 1 donut short of a full blown coronary event anyway

[DeSwiss]

94. It's the cannolies what'll get 'em....

[hootinholler]

70. He doesn't have the market cornered on bad decisions

But I would be happy to see his retirement.

I would imagine that senility would be grounds for impeachment.

[lastlib]

104. Nope--it's not.

Most judges over 65 can take senior status, where they hear fewer cases, and do less judicial work, but nothing requires them to. Other judges on a court can gently nudge one toward the door when signs of senility or dementia start to show and affect his work, but that's not always effective. And the Supreme Court justices certainly doesn't have this option, or we'd have gotten rid of a lot of them a lot younger. But impeachment almost takes an act of God to accomplish. Alcee Hastings was the last one actually impeached, I believe.

[former9thward]

107. It is not.

William Douglas, who was a great champion for civil liberties became very senile in his last years. The final straw for his fellow SC members came when he wrote an opinion (a dissent) saying trees had a right to sue the government. At that point the other Justices joined together and agreed not give any decisions on cases where Douglas would be a deciding vote. They decided to wait for him to die or retire.

He finally retired in 1975 and Justice Stevens took his place. But Douglas believed that he could take senior status, and tried to continue serving on the Court. Douglas refused to accept his retirement and tried to participate in the court's cases well into 1976, after Stevens had taken his former seat. Douglas reacted with outrage when, returning to his old chambers, he discovered that his clerks had been reassigned to Stevens, and when he tried to file opinions in cases whose arguments he had heard before his retirement. Chief Justice Warren Burger ordered all justices, clerks, and other staff members to refuse to help Douglas in those efforts. When Douglas tried in March 1976 to hear arguments in a capital-punishment case, (Gregg v. Georgia), the nine sitting justices signed a formal letter informing him that his retirement had ended his official duties on the court.

A sad end to a great career.

[erronis]

100. But who will take care of his boy if he's gone?

[Hobo]

3. I'll say it......

IMPEACH HIM!!!!!



Hobo

[kag]

25. I'll say it, too, Hobo...

IMPEACH HIM...NOW!!

Before he adjudicates again!

[lostincalifornia]

4. Actually in the last several years he has been acting much more irrationally then usually. I

suspect he is having some kind of deterioration of some sort

[hue]

31. I'm thinking a competency exam--->R/O Alzheimer's or other dementia.

Actually I think there is prob. a RW tangential limited perspective brain dysfunction common to most if not all extreme conservatives...(just sayin')

[lostincalifornia]

42. I didn't say it but I was thinking the same thing

[JDPriestly]

84. They say that learning new things helps keep your brain healthy as you age.

Conservatives think they know everything already and don't need to learn anything new. That's a recipe for brain deterioration and senility. So, maybe.

[StopTheNeoCons]

5. This thread needs 10,000 recs..nt

[hlthe2b]

6. Nothing I can say about that ugly cretin that hasn't been said countless times.

He has no business being a Supreme Court Justice--any more than Clarence, or the twin liars, Alito and Roberts.

[Ron Obvious]

7. This is the guy...

This is the guy who said that factual innocence is no reason to NOT execute someone who's had a fair trial. I don't know what kind of world this idiot lives in, but in the one I thought I was living in, he'd have been impeached years ago.

[Swede Atlanta]

11. Yes, that statement made my jaw drop open...

He should have been impeached and removed from office for that.

Whether someone had a "fair" trial or not if the underlying charges are false what kind of society are we if we believe it is still okay to execute them?

But this is the world in which conservatives live. Their decisions are not fact based. They are based on how they want something to come out. If the facts don't support that outcome they just ignore, manufacture or alter the facts.

[BlancheSplanchnik]

50. really. that was paralyzing.

Efffing pukes....that's where ideology takes you. There, and beyond.

[hue]

33. He lives in his own sociopathic self centered world so common to the RW'ers.

[liberalhistorian]

108. I remember I had that unbelievable statement of his

as my sig line on one of the conservative sites I used to visit several years ago. I was challenged on it by someone who said it'd either been taken out of context or he'd never actually said it that way. I was able to show that that was not the case, but they still had trouble believing it. Probably because it really is such a surreal, incredible, unbelievable thing to think, let alone say, and let alone for a friggin' supreme court justice of all things, that it's almost too hard to believe it's really true.

[Botany]

8. Please his biggest blunder was bush v Gore

[JHB]

54. That wasn't blunder, it was opportunistic activism

[nykym]

9. Well like our friends on the right

would say.
Impeach him immediately!

[Moostache]

10. He is the poster child for rightwing "thinking"...

The entire point of EVERYTHING is to serve the politics of the moment and appease the bloodless zealots on the fringes of reality to burnish your credibility as being truly severely 'conservative'.

He has always been a naked partisan on the court and he has now morphed into the logical conclusion - a self-parody. Imagine the smug response from him if any one else had made a similar gaffe...it would be cause for the court to investigate ways to remove one of their own by god...

[ChairmanAgnostic]

14. I am not so sure.

Given some of his recent public statements, it seems as though there is something more organic and serious going on. He seems to be less in control, and more "decisive" along the lines of early onset aging issues.

[Ineeda]

19. I wonder if it could be a manifestation of

an utter meltdown. We're seeing it all over the RW world: they're revealing more and more of their insane agenda and their contempt of minorities, women and, especially, this black president has become more overt. Despite all Scalia's (and others') efforts, he has failed, mostly. One of the most powerful people in the country! This could drive an egomaniac insane. I sure hope his compatriots are keeping their eyes on him. Betcha he carries a gun.

[JHB]

58. I wouldn't leave out one nonmedical "aging issue"...

...simple "crotchety old crank"-hood.

"I'm close to 80 years old. What are they gonna do to me? Why should I give a rat's ass if what I say bugs somebody?"

Maybe medical factors are exacerbating it, maybe not, but Tony has the personality type that makes a beeline for that status even when in perfect health.

[Nevernose]

71. I think the medical term is "comormidity?"

When a person has two separate problems -- in this case potential aging issues and his lifelong habit of torturing logic until he gets the results he wants -- and getting one result from two problems.

[NJCher]

106. won't be long now

until he's wearing his jammies to work:



Torturing logic--I love that.


Cher

[UtahLib]

12. Scalia-a disgusting Reagan blunder. nt

[n2doc]

13. Senility?

Maybe Fat Tony's brain is failing. Either that or he has gone into full fantasy land.

Has there ever been a judge removed for senility from the SC?

[jwirr]

29. That was my thought.

[Gothmog]

74. I agree with the senility diagnosis

Some of Scalia's latest opinions are really poorly done and have some bad mistakes.

[treestar]

120. Though wouldn't the clerks cover that?

It would show up from the bench though

[fishwax]

15. Speaking of cringeworthy: scalia is a supreme court justice

[SunSeeker]

24. Exactly. nt

[ProfessorGAC]

40. I Cringe Everytime I See His Name In Print

That makes this only a very minor cringeworthy event.

Wow, Scalia made a mistake! Really? He's been wrong about everything for 40 years. Why would this make people cringe now?
GAC

[former9thward]

109. Who was confirmed by a vote of 98-0.

Including now VP Joe Biden.

[merrily]

16. Not a big surprise. Scalia has no regard for truth.

The Justice who invokes originalism every other minute actually found an original intent of the Framers to guaranty corporations a right of using money as political speech.

Who knew they were so inarticulate they couldn't say anything remotely like that?

[Ilsa]

44. Nailed it.

Scalia will make shit up, lie, to suit his oligarchic and religious agendas. It's no surprise that he "misstates" a previous opinion.

[mountain grammy]

17. Demented, deranged, delusional, despicable..

descalia...I expect to someday see him taken away by the little men in white coats.. and Thomas will follow because that's what he does.

[The Wielding Truth]

20. Is there recourse in the Constitution for a SC Justice if they really become mentally unstable?

[ChairmanAgnostic]

21. they run for president?

[mountain grammy]

23. No, I don't think so. Impeachment, retirement, or death..

I'm rooting for all three and apologize to anyone who's offended.

[yellowcanine]

38. If "cringeworthy" were an impeachable offense Scalia and Thomas would both be gone.

Just sayin.'

[mountain grammy]

55. I do think blatant corruption is an impeachable offense

and they are guilty as charged.

[jeff47]

35. Yes, impeachment.

Congress gets to impeach for pretty much anything.

[Ducksworthy]

93. Will Louie Gohmert Notice There's a Problem?

Until he does, I doubt that the House will vote to impeach.

[DFW]

22. Most of his opinions are "cringeworthy" but none was more so than:

Bush v. Gore, of course.

[derby378]

27. Scalia is so full of Duh

[kelliekat44]

28. Wasn't it Scalia who criticized Marshall for not meeting the standards of the SCOTUS? nt

[NYC Liberal]

32. Reminds me of when he opposed overturning DOMA because it wasn't

the Supreme Court's job to "overturn laws passed by the democratic process" (or something)...only a day after striking down a huge portion of the VRA.

[MohRokTah]

34. Alzheimers? Dementia?

One must consider the possibility that the Justice is suffering from some brain disorder given the fact that he wrote the original opinion.

[yellowcanine]

36. Scalia himself is "cringe worthy" so this should not be a surprise.

He makes me cringe, anyway.

[3catwoman3]

110. You and me...

...both. He is completely creepy.

[hue]

37. Since Scalia authored the opinion that he was mistaken on means he has no concept of what he's doing

[malthaussen]

39. It wasn't him, it was a staff member.

Heads will roll for this!

I seriousness, though, I wonder if this is just another illustration of the RW's love of brazenly telling lies and hoping nobody will notice? These days, you know, "true facts" are optional.

-- Mal

[hue]

45. Yet Scalia should be cognizant of what was written under his name.

I also realize most of what is written for the SCOTUS judges is written by aides or even ALEC employees but there should be some culpability by the judges for knowing what was written "by them."

[watoos]

41. Maybe ALEC

Maybe ALEC writes opinions for certain SC justices just like it writes legislation for Repubs. Certainly, someone has to be writing Clarence Thomas' Opinions. He never speaks for a reason.

[sabbat hunter]

61. Thomas claims that

oral arguments are usually a waste of time and that he can make his decisions based on the briefs he is presented.....

[weissmam]

46. does anyone think that

Justice Scalia has lost his marbles

[Quasimodem]

87. Fat Tony's marbles never rolled well, in any case.

Marbles seldom roll well when they are one-sided.

[SwankyXomb]

48. I've been saying to my friends for some time now that

President Obama should just hold a press conference where he announces he's accepting the resignations of Scalia and Thomas, and replace them with the most liberal judges he can find.

[TeamPooka]

52. Clearly Scalia doesn't write his own opinions. nt

[eShirl]

56. as mentioned upthread, seems like possibility of early dementia

or perhaps some other (possibly reversible?) medical issue

[Dustlawyer]

57. A point left out is that Justice Thomas and his clerks totally missed it as well.

Thomas is just so used to saying, "Me too" to everything Scalia does. He is a mental light weight who does not ask questions during oral arguments for fear of exposing his stupidity. Besides, that would mean that he has to pay attention during the arguments.
Scalia, Thomas, Alito, and Roberts are all partisan hacks. Notice that Scalia's opinion on the case did not change one bit even though he discovered that his argument was based on the facts being opposite of what he had thought they were. Disgusting and sad!

[lostincalifornia]

117. Though I disagree with much about many of Robert's decision, I would not group him with scaila,

thomas, and alito.

Roberts most amazing decision was the ACA. In fact he provided the argument for the proponents of it by telling them it was a tax. when they refused to use that argument. We really escaped a bullet with that one. I believe he was influenced by his personal medical situation which allowed it to pass This is another reason why Roberts voted down oversight for Southern states, implying that "prejudice" is no longer a problem in those states, because he has no personal experience in being discriminated against.

Roberts decision on citizens united is outrageous, and I believed deeply flawed, the same can be said for kennedy. It is now obvious that Kennedy was kept in check by o'conner, especially with regard to his decisions after she left.

[LondonReign2]

59. HE.DOESN'T.FUCKING.CARE

He's made that clear. He doesn't give a flying fuck, or any sort of fuck at all for that matter, about jurisprudence. And, he's not going to bother making believe that he does. He knows he is beyond the law and he is determined to act that way.

[AAO]

86. I can only imagine what an ass I'd become if I knew I couldn't be fired.

[corkhead]

60. His selection by St. Ronnie of Rayguns was the original declaration of war on civility in govt IMHO

[Orsino]

62. We outsourced justice to the billionaires...

...and ought not to act surprised when they in turn outsource it to cheap, unskilled labor.

[bvar22]

63. "cringeworthy" and "embarrassing" only apply to people with a sense of shame.

The sense of shame is one of the very few things that separates us from the animals.
Scalia lost that long ago.

[WillyT]

64. K & R !!!

[A Simple Game]

65. So does this mean that just by keeping his mouth shut, Clarence is the smart one? n/t

[leanforward]

66. It's time to retire.

Thank you for posting this note from Prof Farber. Justice Scalia needs to resign. What gets me is he wrote the other opinion. Hopefully, the snowball has started rolling.

[Spitfire of ATJ]

67. Too much rich food at those gala conservative events.

[1StrongBlackMan]

68. I think, there is a third ...

"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."

and more likely option to consider, based on his apparent aversion to facts ...

Scalia doesn't care about facts, and neither does the right. We have seen time after time, simply declaring something, makes it a fact, even when easily proven false. In the (loosely adapted) words of a gop aide: "We create truth by declaration ... and while you spend your time proving us wrong, we've accomplished our aim and have moved on to declare a different truth, on a different topic."

[rock]

69. Come on, admit it! Does Justice Scalia's opinion have to make sense?

Does it have to be grammatical? Does it even have to be English or for that matter a human language? If it does need to be any of these things, then we picked the wrong man. Although I hear he can pick his nose, tie his shoes and wipe his ass all at the same time.

[Gothmog]

73. Scalia has been going senile for some time now

It is time for this idiot to retire

[calimary]

75. antonin scalia IS a cringeworthy blunder.

And every ruling he issues is a cringeworthy blunder.

[volstork]

76. Why 6-2?

Which justice abstained and why?

[riverbendviewgal]

77. Sounds like he has Alzheimer's or dementia

He should be retired.

[chknltl]

78. This is what happens when one forgets to remove the lump of coal from...

...ones Christmas stocking before putting the stocking on ones head.

[struggle4progress]

79. Keep a list of stuff like this: it may become useful

[indepat]

80. The nomination and confirmation of Anton Scalia as a Supreme Court Justice surely is one of this

nation's most cringe-worthy blunders imo. The proof is in the constitutional damage inflicted by his opinions and depraved influence he inflicts on other right-wing justices.

[Supersedeas]

81. never let the law get in the way of pushing a political agenda

[Laelth]

82. Time to retire? n/t

-Laelth

[AAO]

85. Time to retire when your mind goes...

He should have retired before he became a judge.

[DeSwiss]

89. Before he was against it, he was for it.......

...but then he was against it again.

- Only that time it was by mistake. Clear?

K&R


''Oops. I think I sharted.....''

[dicksmc3]

90. what an IDIOT!!!

So, what else would we expect from a right-wing ding like Scalia. He was a BIG supporter of MONEY IS SPEACH... NUf Said...

[blkmusclmachine]

95. ,

,

[stg81]

96. Next opinion written in purple crayon: EPA = EVIL (with frowny face)

[McCamy Taylor]

97. Is senility a grounds for impeachment?

And if he goes, can his buddy Thomas be far behind?

[valerief]

98. No mistake. He's rewriting history. As usual. nt

[AverageJoe90]

99. Can you say, "wacky wingnut", anyone?

I mean it literally this time. This goodfella's losing his marbles.....

[Warpy]

101. He's lost it. Face it, he's a walking example of Organic Mental Disease

which is the fancy ass name for senile dementia these days. I spotted it during Stupid's early years and it's getting bad enough that his clerks are having trouble covering for him.

With that massive ego, he won't resign. We need a mechanism that will retire such people when it starts to get obvious.

The founders messed up on that one. USSC justices should have been appointed for 25 years or life, which ever is shorter.

[Lint Head]

102. Scalia and Thomas should be impeached.

[Stryst]

103. According to google...

A Supreme Court Justice may be impeached by the House of Representatives and removed from office if convicted in a Senate trial, but only for the same types of offenses that would trigger impeachment proceedings for any other government official under Articles I and II of the Constitution

[markpkessinger]

105. What "should be" and what realistically can be done are two very different things...

Since impeachment requires a 2/3 vote in a Senate trial, so long as there are at least 34 Republicans in the U.S. Senate, impeaching Republican Supreme Court justices remains a practical impossibility.

[Stryst]

118. GOTV

I live in north Florida, and if it takes two dem votes to equal one republican vote, then Ill make sure I have at least two friends with me when I vote.

[3catwoman3]

111. As corpulent as he is...

...surely his heart attack or stroke must be overdue.

[Iwillnevergiveup]

112. I too, hope for an early departure

from the SC by Scalia, for whatever reason. How about Kamala Harris as a replacement?

[Hulk]

113. He is "cringeworthy"..

The guys is one devilish looking, twisted mind fook. I have yet to hear or see one thing come from this thug jack ass that I can agree with. Not one!

[Helen Borg]

114. Scalia has early signs of AD

This is a huge problem, when few old people have so much power. They should be required to take tough cognitive and affective functioning tests every year.

[nyabingi]

115. Scalia and his Mini Me (Thomas)

are both the best arguments for doing away with the lifetime appointment of Supreme Court justices.

[JackInGreen]

116. Same way that they got across corperate personhood back in the day, wasn't it?

have an opinion or descent out of line with previous decisions, have it tagged FOR that blunder for research, the blunder becomes the new rule, right?

[Gothmog]

119. This was a major screwup or mistake by Scalia

This was a major screwup by Scalia http://talkingpointsmemo.com/dc/antonin-scalia-blunder-unprecedented-epa

Justice Antonin Scalia's factual error in a dissenting opinion Tuesday has become the talk of the legal community as experts puzzle over the extraordinary nature of the Reagan-appointed justice's blunder, which the Supreme Court quietly corrected as of Wednesday morning.

It's common for the Supreme Court to make typographical corrections and insubstantial edits to a decision after its release. But it's exceedingly rare to see a factual error that helps form the basis for an opinion. Legal experts say Scalia's mistake appears to be wholly unprecedented in that it involves a justice flatly misstating core facts from one of his own prior opinions.

"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."

I do not remember seeing the SCOTUS ever make a major change to an already released opinion