Antonin Scalia's Blunder Is Unprecedented, Legal Experts Say

[ashling]

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 have seen sloppy footnoting before but nothing this bad," said Garrett Epps, a constitutional law professor at the University of Baltimore.

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

[blkmusclmachine]

1. Revisionist history.

[brush]

13. That or he really needs to retire . . .

I'm sure I'm not the only who thought of the "S" (senile) word, considering his age. Some people stay sharp as they age, some not so much.

And Scalia has taken some high-profile but not necessarily cogent stances lately.

[elleng]

35. I thought similarly,

especially in light of Justice Stevens' recent explanation of why he retired when he did. He said, in an interview with I forget whom, that he decided to retire when, while doing an interview, he found himself briefly unable to come up with just the right words to use, suggesting his mind wasn't what it should be.

[yeoman6987]

41. That is why term limits would be helpful

I think that Justice Ginsburg should have retired awhile ago and I love the woman, but there comes a time when retirement is a nice thing for them. It is kinda crazy for them to go with death.

[Helen Borg]

62. Dementia...

It seems to me that this is evidence he is not fit to do his job. Therefore, he should submit to various cognitive tests and if he does not pass he should be replaced. If a train conductors cannot perform her job safely, wouldn't she be prevented from operating the train?

[Scuba]

2. Scalia and the rest of the neo-cons say whatever suits them at the moment. Facts be damned.

[malaise]

6. Ding Ding we have a winner

Time to say goodbye to this scumbag- maybe dementia is setting in

[Retrograde]

8. As Ronald Reagan once said

"Facts are stupid things".

[aquart]

28. Was that before or after his Alzheimer's became obvious?

[Retrograde]

66. It was brushed off a a slip of the tongue

He was supposed to say something like "Facts are stubborn things", but I found it very revealing. IIRC, it was towards the end of his second term.

[SomeGuyInEagan]

67. Should've been chiseled into his headstone.

And tattooed onto the foreheads of Junior, Gingrich, Palin, Bachmann and the rest.

[Bernardo de La Paz]

10. +1. Also Republicans famously "don't do nuance". And they "make our own reality". nt

[calimary]

23. And let's all remember, this pompous putz is yet another "legacy" of St. ronnie.

[mountain grammy]

25. Yes, the gift that keeps on giving.

[Warpy]

31. This is a big enough fuckup

that he might be put under pressure to resign.

He's been showing signs of dementia for some time.

[eggplant]

63. Under a democratic president? He'll choose to die on the bench first.

[Warpy]

65. Well, his colossal ego will prove to be the biggest problem

I hoped that he'd quit once Roberts was appointed Chief Justice, skipping right over his head. That really should have done it and it was also probably recognition that Scalia was slowly losing what few marbles he'd ever had.

However, the risk of keeping him there is even greater the more his dementia starts to show.

[eggplant]

70. I agree that he *should* go.

But short of Congress booting his ass out (and the odds of that happening are zero) he'll only leave feet first. He would never voluntarily retire. I bet that even if he had a visibly debilitating disease, he still wouldn't leave.

More's the pity. His legacy will take decades to undo.

[JDPriestly]

58. We all make mistakes, but Supreme Court opinions should be vetted and criticized and

passed around. Scalia's "mistake" is not just embarrassing. It is a sign of arrogance, overconfidence and a lack of professional integrity. Sure, it can happen in a small law office (or even a big one) in which the lawyers and staff are all struggling to get the bills paid and the work done on deadlines.

But there is no excuse for that kind of "error" at the Supreme Court.

Here is the list of Scalia's current law clerks. They graduated from some of the best law schools in the country. This is shameful. It demonstrates the lack of care, the lack of respect for stare decisis on the part of Scalia and his team.

Scalia should resign. He is clearly past his prime and unable to give to his work the kind of attention and dedication that it requires.

Remember. Scalia is one of the maybe 10-15 most powerful people in our government. He should quit while he is ahead.

Scalia should resign.

[tishaLA]

3. his cognitive impairment coupled with his increasingly erratic behavior

over the past five years lead me to believe he may need to be forced to step down from the bench. Soon, he will be flinging feces at the walls--not just in his legal opinions, either.

[progressoid]

4. He certainly has become quite unhinged lately.

The sooner he goes, the better.

[Arugula Latte]

9. How is that done ... the forcing?

Because it needs to happen, pronto.

[Rex]

19. I believe Congress would have to remove him...not sure the legal proceedings involved.

Do they get impeached from the bench? Someone will come along and tell us.

[yeoman6987]

42. A wrong worded decision will NEVER get Congress to impeach him. Even with 300 Democrats,

they would NEVER do that.

[Rex]

50. Any SCOTUS justice ever been impeached?

I wonder.

[hedgehog]

21. Justice William O Douglas:

Since the 1970 impeachment hearings, Douglas wanted to retire from the court. He wrote to his friend and former student Abe Fortas: "My ideas are way out of line with current trends, and I see no particular point in staying around and being obnoxious".[25]

At age 76 on December 31, 1974, while on vacation in the Bahamas, Douglas suffered a debilitating stroke in the right hemisphere of his brain. It paralyzed his left leg and forced him to use a wheelchair. Douglas, severely disabled, insisted on continuing to participate in Supreme Court affairs despite his obvious incapacity. Seven of his fellow justices voted to postpone until the next term any argued case in which Douglas' vote might make a difference.[31] At the urging of Fortas, Douglas finally retired on November 12, 1975, after 36 years of service.

Douglas submitted his resignation to now President Gerald Ford. In his response, Ford put aside former differences and paid tribute to the retiring justice, writing:

"May I express on behalf of all our countrymen this nation's great gratitude for your more than thirty-six years as a member of the Supreme Court. Your distinguished years of service are unequaled in all the history of the Court."[32]

Ford also hosted Douglas as an honored guest at a White House state dinner later that same month, writing of the occasion later: "We had had differences in the past, but I wanted to stress that bygones were bygones."[33]

Douglas believed that he could take senior status, and tried to continue serving on the Court. According to Woodward and Armstrong, 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. Only then did Douglas withdraw from Supreme Court business.[34] One commentator has attributed some of his behavior after his stroke to anosognosia, a neuropsychological presentation which leads an affected person to be unaware and unable to acknowledge disease in himself. It often results in defects in reasoning, decision making, emotions, and feeling.[35]

http://en.wikipedia.org/wiki/William_O._Douglas#Retirement

[ashling]

30. Antonin Scalia answered your pos:

"Argle - Bargle"

[Frustratedlady]

5. Maybe he was all atwitter because the Kochs were telling him what to say or do.

That should wipe that silly grin off his face for a while.

What would Thomas do if he lost his sidekick?

[HangOnKids]

7. Nap

As always.

[Ikonoklast]

44. Never speak out from the bench again.

Oh, wait...

[Baitball Blogger]

11. This is what comes from outsourcing and over-delegating duties.

King Scalia got caught. Heads will roll!

[Daemonaquila]

15. On the contrary.

It's unlikely that someone else did the writing and research. Clerks are some of the brightest, most detail oriented people in the field, especially those hired by SCOTUS or appeals court judges. It's virtually inconceivable that one of them made such a blunder. It's more likely that a clerk felt that arguing with a Justice was below his pay grade, and thus will have no job in a few days after this embarrassment.

[Baitball Blogger]

16. I think he'll pin it on some lowly clerk.

If he owns that mistake, he should be removed for incompetence.

[msanthrope]

17. I think you are correct.....and aren't SCOTUS clerks turning over soon, anyway?? nt

[JHB]

57. Not just Scalia and his clerks. Thomas and his, too.

Thomas signed on with Scalia's dissent, but he and his didn't sniff out the discrepancy.

[Hekate]

12. Senility? Retirement? nt

[TNNurse]

14. Perhaps

He should go back to law school or maybe retake the bar exam. He seems to have forgotten a little too much. Or he is just an arrogant, ignorant awful person?

[Rex]

18. Like he cares! He fucked up America, maybe for good in 2000...what is a little more destruction

of the Union by such a reprobate? I will no longer call him a judge or by his name or even a snarky nickname...he is merely known to me now as reprobate.

[tanyev]

20. Tony Scalia don't care.

[URL=.html][IMG][/IMG][/URL]

[aquart]

27. S. E. N. I. L. E.

[BrotherIvan]

39. From the swelling of his face and hands, he is classically hypothyroid

Left untreated for so long it can lead to brain fog, overall pain, fatigue & CFS, and symptoms that look like dementia. But it doesn't account for being an evil prick.

Bye, Tony!

[Gothmog]

22. I have never seen the SCOTUS make a major revision in a released opinion

I have been practicing law for a long time and this is not typical. Scalia really screwed up here and I am concerned that he is indeed going senile.

[ashling]

34. Reminds me of Dewhurst's post-dating the

vote after Wendy's filibuster.

As long as the record looks ok on paper.

[Gothmog]

37. There was a video record and so the Dew ended up not backdating or changing time stamp on that vote

Dewhurst was threatening to backdate but once he saw the Texas Tribune video of the debate with a time stamp on it, he drop that idea.

[giftedgirl77]

51. Boy oh boy was I hoping for him to try & pull that shit

with the stamp. You could tell they wanted to so badly. As far as Scalia goes, I can't believe they don't do some kind of review prior to publishing (like 10) to make sure everything was on point.

[calimary]

24. If one of the "liberal" justices had done this, there'd be all kinds of yowling about impeachment.

But let it be that scum scalia and there's silence.

[aquart]

26. S. E. N. I. L. E.

[mountain grammy]

29. Couldn't he just go duck hunting with Cheney again?

Maybe old Dick's a better shot now... Because, I'll bet money on this: he'll never leave voluntarily!

[grasswire]

32. isn't it possible that it was no blunder?

Couldn't he just be "creating his own reality"?

[obxnacy]

33. jackass

he is suffering from Alzheimer's for sure - but, he has been an angry man (not an angry black man - just angry) for decades and now is losing his memory and mind. he's got to be removed before he destroys the supreme court's reputation completely. it is bad enough already with roberts (poor little rich boy), alito (sad example of jurisprudence), scalia (he makes neanderthals look intelligent) and kennedy (suck up man). they are all examples of privilege over the normal americans (who are stupid enough).

[ashling]

36. I have always said -

OK, not always,

but at least twice (maybe even more) I said that this man would succumb to his own anger

[gratuitous]

38. Can't help but think of Justice Holmes

He stepped down from the Supreme Court when it was obliquely suggested that at age 90 he was slipping mentally. Not only is Scalia not in Justice Holmes' league judicially speaking, Scalia's about five notches below Holmes on the gentleman scale.

[greatlaurel]

40. Nino's No-no

When Nina Totenberg can mock a Supreme Court Justice, it is time to retire.

[Cha]

43. Didn't he have a smarter Law Clerk around to help him out?

[Ikonoklast]

47. Maybe he had a law clerk that he pissed off "helping" him out.

Arrogance usually makes enemies of former allies.

[Cha]

48. ah.. smarter law clerk but not in a helping mood. got it.

[diane in sf]

45. as are most of his rulings...

[kelliekat44]

46. Show you what a light weight he is. He has always been overrated to me...just full of himself

He is a product of fiction told over and over again. Go read his opinions and see for yourself. He and Thomas are two peas in a pod.

[Crunchy Frog]

49. That's because he knows he can get away with saying absolutely anything

and there will be no accountability whatsoever.

[chrisstopher]

52. Wouldn't it be nice

If president Obama got to replace him before his term is up?

[MADem]

53. WTF is wrong with his minions? His legal eagles who do the heavy lifting are supposed to keep him

out of trouble...what are those clerks doing all day? Playing video games and watching soap operas?

Are they all a bunch of Liberty University grads? That would explain a good bit of the stupidity!

"It's almost as embarrassing not to know federal law as it is not to know your own opinion."

[trublu992]

54. Is his blunder good enough to jump start a discussion about removal?

[ronnie624]

55. I can clearly imagine how his face burned when the realization occurred.

Last edited Sat May 3, 2014, 08:55 AM - Edit history (1)

[Historic NY]

56. One has to wonder how many other blunders have been made.

[GoneFishin]

61. Yep. You know his reasoning is unsound. This time it is just more easily proved. nt

[greatlaurel]

59. We need to be relentless about Scalia's giant blunder.

It needs to be brought up and discussed over and over about this unprecedented mistake of Scalia's. Nino's No-no should be blogged about constantly until he is driven from the court. The man is an intellectual light weight who has only been given any credence due to his consistent rulings in favor of the rich and powerful.

He is certainly showing signs of some sort of mental decline.

[GoneFishin]

60. He should go now, but waiting until he shows up in court with no pants on because the RW fought

to keep him on the bench as long as possible would be gratifying too.

[Blue_In_AK]

64. Eww, disgusting mental image.

[bearssoapbox]

68. Maybe he just doesn't care.

With the way the rethugs and right-wing have gone off the rails since Obama was elected, they have said and done many things that have baffled sane and reasonable people without there being any repercussions for their actions.

The Bundy militia pointing weapons at federal agents.

The Snowbilly Grifter with her crosshairs on Democrats stunt.

Some rethugs still won't admit that President Obama's birth certificate is real or that he's an American.

In general, the complete and utter total disrespect that has been shown to President Obama since before he was even elected that, for the most part, they haven't been called out on.

That lack of respect has been spread to how they treat the rest of the democrats, left, liberals, etc. because they know that they can get away with it most of the time.

If he is getting senile or demented, maybe it's letting his racism, misogyny and bigotry come more readily to the surface.

Either way...

He has become the poster image for term limits.

[rickyhall]

69. But without Scalia who will think for Thomas?