# Any of the usual Scalia defenders want to explain this one? **URL:** \ **Category:** Great Debates\ **Created:** [May 2, 2014, 7:38pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530 "2014-05-02T19:38:30Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Don\_t\_Call\_Me\_Shirley](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@Don\_t\_Call\_Me\_Shirley](https://boards.straightdope.com/u/Don_t_Call_Me_Shirley)\ **Post date:** [May 2, 2014, 7:38pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/1 "2014-05-02T19:38:30Z")
This hasn’t been in the news much, but apparently Scalia’s dissent in a recent Clean Air Act case contains a mistake. He mischaracterizes a previous decision, and, (this is my favorite part), _it’s one of his own decisions._ > [@MSNBC](#): > > …Jonathan Adler, a professor at the Case Western University School of Law and a writer for the conservative law blog Volokh Conspiracy, noted that Scalia’s dissent misstates the context of a 2001 Clean Air Act case, Whitman v. American Trucking Assns., Inc., in which Scalia himself actually wrote the opinion. > > Scalia identified the case as one in which the EPA sought to consider cost-effectiveness in developing regulations when the reverse was true. > > snip > > Talking Points Memo also noted Scalia’s error. Adler wrote that Scalia’s dissent has since been corrected. Brian Buetler notes: > [@New Republic](#): > > [This] speaks to a recognition among critics and even some former admirers that Scalia has been operating as a GOP henchman in a black robe for years and years now So, I’m wondering what some of the usual Scalia defenders around here think. I certainly have no love for Scalia, and have thought he was a right wing stooge for years. I don’t see how an honest mistake could have gotten past the swarms of staffers that read and check his decisions before he releases them, so he must have known and not cared. I also think that the fact that this “mistake” occurred during a passage in which he was trying to make fun of his colleagues for contradicting a prior decision, while providing delicious irony, bolsters the argument that he ceased to be a serious jurist at some point in the past, or that he is losing his marbles. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [May 2, 2014, 7:41pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/2 "2014-05-02T19:41:34Z")
Already covered in [this thread.](http://boards.straightdope.com/sdmb/showthread.php?t=710089) ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [May 2, 2014, 7:43pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/3 "2014-05-02T19:43:02Z")
> [@](#): > > Originally Posted by New Republic > [This] speaks to a recognition among critics and even some former admirers that Scalia has been operating as a GOP henchman in a black robe for years and years now I’m not sure even Justice Scalia would deny that. However, I don’t see the “error” as that damming. ETA: maybe it is a bigger deal. From the other thread: … > [@](#): > > “It is a mind-blowing misstatement of a basic fact of the American Trucking Association ruling which Justice Scalia himself wrote. And it’s not just a stray passage — it’s the basis for an entire section of the dissent,” said Kendall. “It is very unusual for to see a passage that so clearly misstates the fundamental facts of a prior ruling, especially one written by the justice himself.” ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [May 2, 2014, 7:44pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/4 "2014-05-02T19:44:22Z")
Maybe it’s time for Scalia to step down. Oh, wait – that should have been done decades ago. ---
**Author:** ![yellowjacketcoder](https://avatars.discourse-cdn.com/v4/letter/y/4bbf92/32.png) [@yellowjacketcoder](https://boards.straightdope.com/u/yellowjacketcoder)\ **Post date:** [May 2, 2014, 8:01pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/5 "2014-05-02T20:01:45Z")
> [@Don\_t\_Call\_Me\_Shirley](#): > > I don’t see how an honest mistake could have gotten past the swarms of staffers that read and check his decisions before he releases them, so he must have known and not cared. I’m a programmer, not a jurist. And I have no love for Scalia - in fact, my fervent dreams for the court are for Scalia and Thomas to finally be found in bed together, so they’ll resign in disgrace and Obama can appoint some jurists I agree with to the court. But I’m willing to just see this as an error. I can’t count the number of times I’ve looked at a piece of code, thought “what idiot wrote this piece of crap!?”, only to check the source control logs and find out that idiot was me. And I don’t blame the clerks either - I am sure they are very overworked, not to mention I sure don’t want to be the guy that disagreed with Mr. Angry dude in a black robe. Not to mention even professionals at the top of their game make boneheaded mistakes every once in a while. Sure, I dislike Scalia and would like him off the court. But I dislike him for his jurisprudence, not for small potatoes like this. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 2, 2014, 8:10pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/6 "2014-05-02T20:10:09Z")
> [@Don\_t\_Call\_Me\_Shirley](#): > > I don’t see how an honest mistake could have gotten past the swarms of staffers that read and check his decisions before he releases them, so he must have known and not cared. I also think that the fact that this “mistake” occurred during a passage in which he was trying to make fun of his colleagues for contradicting a prior decision, while providing delicious irony, bolsters the argument that he ceased to be a serious jurist at some point in the past, or that he is losing his marbles. I’m not sure you understand what the error was. He didn’t misstate the holding of the earlier case. He misstated the position that the EPA took in the earlier case. He 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. But that’s not what happened: in _Whitman v. American Trucking_, it was NOT the EPA that took that position - it was American Trucking who argued that the EPA could consider costs, and the EPA who argued (and won) with the view that the Clean Air Act forbid the consideration of costs. So Scalia correctly explained the result of American Trucking – he just got the positions that the EPA and American Trucking argued reversed. Of course – so did Justice Stevens, in 2009, in _Entergy v. Riverkeeper_, 556 US 208 at 227 (2009): > [@Justice Stevens' dissent](#): > > When interpreting statutory silence in the past, we have sought guidance from a statute’s other provisions. Evidence that Congress confronted an issue in some parts of a statute, while leaving it unaddressed in others, can demonstrate that Congress meant its silence to be decisive. We concluded as much in American Trucking. In that case, the Court reviewed the EPA’s claim that §109 of the Clean Air Act (CAA), 42 U. S. C. §7409(a)(2000 ed.), authorized the Agency to consider implementation costs in setting ambient air quality standards. After examining other provisions in which Congress had given the Agency authority to consider costs, the Court “refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted.” 531 U.S., at 467, 121 S.Ct. 903. Studied silence, we thus concluded, can be as much a prohibition as an explicit “no.” I am curious to hear your explanation for Justice Stevens’ error getting past his “swarms of staffers,” that read and check his decisions before he releases them. Do you agree that Justice Stevens also must have known but not cared? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [May 2, 2014, 8:16pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/7 "2014-05-02T20:16:33Z")
> [@yellowjacketcoder](#): > > And I don’t blame the clerks either - I am sure they are very overworked, not to mention I sure don’t want to be the guy that disagreed with Mr. Angry dude in a black robe. Not to mention even professionals at the top of their game make boneheaded mistakes every once in a while. > . I’m not sure I blame the clerks, but I don’t think they’re “very overworked.” They might be “law review types” that spend 10 hours on a two hour project, but the case load at the USCC isn’t that crushing. The Supreme Court hears less than 90 cases per year. That’s 10 opinions per year per justice (or less). Each justice has how many clerks? Four, I believe. I’m not legal scholar, but I’m pretty sure I could bang out 2 or three opinions **per year** and not screw it up too bad. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [May 2, 2014, 9:13pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/8 "2014-05-02T21:13:45Z")
> [@yellowjacketcoder](#): > > . . . I can’t count the number of times I’ve looked at a piece of code, thought “what idiot wrote this piece of crap!?”, only to check the source control logs and find out that idiot was me. . . . Grin! That’s happened to me here on the SDMB, when someone opens an old zombie thread, and I look back to see a dorky comment…that I made… > [@](#): > > Sure, I dislike Scalia and would like him off the court. But I dislike him for his jurisprudence, not for small potatoes like this. This. I learned contempt for Scalia from his grotesque miscomprehensions in his dissent in Edwards v Aguillard, the Louisiana creationism case. People have been saying for years what a brilliant jurist he is. Well, he must have put his brain in a blind trust when he wrote that dissent, as it is one of the stupidest damn pieces of judicial illiteracy known on this planet. He whined, “…To look for the sole purpose of even a single legislator is probably to look for something that does not exist.” This…after the “smoking gun” had already been demonstrated, and that the intent of the legislation had been admitted publicly by more than one legislator to have specific Christian sectarian purposes. ---
**Author:** ![Don\_t\_Call\_Me\_Shirley](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@Don\_t\_Call\_Me\_Shirley](https://boards.straightdope.com/u/Don_t_Call_Me_Shirley)\ **Post date:** [May 2, 2014, 10:20pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/9 "2014-05-02T22:20:46Z")
> [@Bricker](#): > > I’m not sure you understand what the error was. > > He didn’t misstate the holding of the earlier case. He misstated the position that the EPA took in the earlier case. He wrote: > > But that’s not what happened: in _Whitman v. American Trucking_, it was NOT the EPA that took that position - it was American Trucking who argued that the EPA could consider costs, and the EPA who argued (and won) with the view that the Clean Air Act forbid the consideration of costs. > > So Scalia correctly explained the result of American Trucking – he just got the positions that the EPA and American Trucking argued reversed. > > Of course – so did Justice Stevens, in 2009, in _Entergy v. Riverkeeper_, 556 US 208 at 227 (2009): > > I am curious to hear your explanation for Justice Stevens’ error getting past his “swarms of staffers,” that read and check his decisions before he releases them. Do you agree that Justice Stevens also must have known but not cared? Good god, you are a one-trick pony. The democrats did it too! The democrats did it too! The democrats did it too! I did not know that Stevens made a similar error. I’m equally surprised that such an error got past his clerks. I see several differences though. Steven’s error was not part of an attempted “gotcha ya” to make his opponents look silly. Stevens’s mistake does not reinforce a widely held view that he is a partisan hack. And finally, and I can’t stress this enough, _Stevens didn’t write the original fucking opinion._ But, thank you for staying true to form, (which I might point out is the same form that earned Scalia this little embarrassment on his record), which is the complete disregard for the actual point in favor of accusations of hypocrisy. The SDMB wouldn’t be the same without you. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [May 2, 2014, 10:20pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/10 "2014-05-02T22:20:52Z")
> [@Procrustus](#): > > I’m not sure I blame the clerks, but I don’t think they’re “very overworked.” They might be “law review types” that spend 10 hours on a two hour project, but the case load at the USCC isn’t that crushing. The Supreme Court hears less than 90 cases per year. That’s 10 opinions per year per justice (or less). Each justice has how many clerks? Four, I believe. I’m not legal scholar, but I’m pretty sure I could bang out 2 or three opinions **per year** and not screw it up too bad. Those are just the ones that grant ‘cert’ tp. They spend a huge amount of time deciding just that - which ones to grant cert. There’s a YouTube interview with Justice Breyer and he points out the current week’s applications for cert (or whatever the apps are called). IIRC, they occupied a small bookshelf (and no individual one was terribly thick). Either [this](http://www.youtube.com/watch?v=wD46zkGd8k0) or [that](http://www.youtube.com/watch?v=_4n8gOUzZ8I) is the Breyer video in case you’re interested. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [May 2, 2014, 10:58pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/11 "2014-05-02T22:58:11Z")
> [@Don\_t\_Call\_Me\_Shirley](#): > > But, thank you for staying true to form, (which I might point out is the same form that earned Scalia this little embarrassment on his record), which is the complete disregard for the actual point in favor of accusations of hypocrisy. The SDMB wouldn’t be the same without you. Except that he did, in fact, address the point of the thread. It was in the part of his post you ignored in favor of complaining about the hypocrisy angle. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 2, 2014, 11:27pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/12 "2014-05-02T23:27:24Z")
So, the equivalent of a typo then. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 2, 2014, 11:35pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/13 "2014-05-02T23:35:13Z")
> [@Miller](#): > > Except that he did, in fact, address the point of the thread. It was in the part of his post you ignored in favor of complaining about the hypocrisy angle. Indeed, and the ironic part is that she actually quoted the whole post, which included the part addressing the OP. Or, at least the small part of the OP that wasn’t well poisoning. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [May 2, 2014, 11:37pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/14 "2014-05-02T23:37:16Z")
> [@Don\_t\_Call\_Me\_Shirley](#): > > Good god, you are a one-trick pony. The democrats did it too! The democrats did it too! The democrats did it too! > > I did not know that Stevens made a similar error. I’m equally surprised that such an error got past his clerks. > > I see several differences though. Steven’s error was not part of an attempted “gotcha ya” to make his opponents look silly. Stevens’s mistake does not reinforce a widely held view that he is a partisan hack. And finally, and I can’t stress this enough, _Stevens didn’t write the original fucking opinion._ > > But, thank you for staying true to form, (which I might point out is the same form that earned Scalia this little embarrassment on his record), which is the complete disregard for the actual point in favor of accusations of hypocrisy. The SDMB wouldn’t be the same without you. If you wish to open a Pit thread against Bricker, you are free to do so. Making a personal attack against a poster who did exactly what your OP requested makes it appear that this was a set up to play “gotcha.” (I do not believe it was, but that is the appearance you present.) **Bricker** answered your question, then asked how you regarded another jurist and his staff who made a similar error. It seems appropriate to the thread. Now, back off and stick to the topic that you introduced without going off on a tirade against other posters whose responses you do not enjoy. [/Moderating] ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 2, 2014, 11:40pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/15 "2014-05-02T23:40:40Z")
> [@Don\_t\_Call\_Me\_Shirley](#): > > Good god, you are a one-trick pony. The democrats did it too! The democrats did it too! The democrats did it too! Your post made the explicit argument that this error was deliberate on Scalia’s part: “…I don’t see how an honest mistake could have gotten past the swarms of staffers that read and check his decisions before he releases them, so he must have known and not cared.” It’s thus completely relevant to point out that the precise error was made by another justice. And for whatever it’s worth, Stevens was appointed by a Republican. And Stevens’ error appeared in a dissent, which is certainly an effort to undermine his opponents’s arguments, so I don’t know why you feel only Scalia’s response merits the animus of “an attempt to make opposition arguments look silly.” ---
**Author:** ![CapnPitt](https://avatars.discourse-cdn.com/v4/letter/c/edb3f5/32.png) [@CapnPitt](https://boards.straightdope.com/u/CapnPitt)\ **Post date:** [May 5, 2014, 9:42pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/16 "2014-05-05T21:42:32Z")
I think his point is, **Bricker** , that you trot out the tu quoque a lot. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [May 5, 2014, 10:06pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/17 "2014-05-05T22:06:40Z")
> [@CapnPitt](#): > > I think his point is, **Bricker** , that you trot out the tu quoque a lot. That two justices, of different allegiances, committed the same mistake in talking about the same case seems like pretty fair evidence that the case was confusing, or at least that justices aren’t infallible in their memories. If they were both on the same party, then some sort of conspiracy could be argued. While it’s certainly possible that Bricker’s rebuttal was made in bad faith, attacking his intent instead of the content is just doing the same thing back as you’re complaining about. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 5, 2014, 11:03pm UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/18 "2014-05-05T23:03:37Z")
> [@yellowjacketcoder](#): > > And I have no love for Scalia - in fact, my fervent dreams for the court are for Scalia and Thomas to finally be found in bed together, so they’ll resign in disgrace and Obama can appoint some jurists I agree with to the court. Gotta work Long Dong Silver into that somehow . . . ---
**Author:** ![yellowjacketcoder](https://avatars.discourse-cdn.com/v4/letter/y/4bbf92/32.png) [@yellowjacketcoder](https://boards.straightdope.com/u/yellowjacketcoder)\ **Post date:** [May 6, 2014, 1:47am UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/19 "2014-05-06T01:47:42Z")
> [@BrainGlutton](#): > > Gotta work Long Dong Silver into that somehow . . . I’m really afraid to ask which Justice has that moniker… ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 6, 2014, 2:02am UTC](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530/20 "2014-05-06T02:02:43Z")
> [@CapnPitt](#): > > I think his point is, **Bricker** , that you trot out the tu quoque a lot. Clearly this is not tu quoque. As I clearly explained above. Do you understand the tu quoque fallacy? [Next page](https://boards.straightdope.com/t/any-of-the-usual-scalia-defenders-want-to-explain-this-one/687530.md?page=2)