Scalia demonstrates how to recover from an apparent misstep with a 'Scalia culpa,' says reporter
Justice Antonin Scalia.
Justice Antonin Scalia relied on an often-used quotation last week when he admitted overlooking an issue in a prior case which led to the appearance of inconsistency.
Scalia was called to task by Justice Ruth Bader Ginsburg, who said he apparently changed position when he argued in a dissent last week that the U.S. Supreme Court should have dismissed a case as improvidently granted. Scalia had argued in the dissent that the real issue in the case was whether the federal appeals court abused its discretion in denying the defendant permission to appeal. As a result, he argued, the majority should not have decided a removal issue. Yet that problem did not deter him in an earlier case.
In a Sidebar column, New York Times SCOTUS correspondent Adam Liptak describes Scalia’s recovery from the apparent flip-flop as a “Scalia culpa” involving three steps.
First, Liptak says, Scalia openly admitted the apparent change in position from an earlier case. Second, Scalia supported his acknowledgement with a “classy quotation” from former Justice Robert H. Jackson. Third, he returned fire, noting Ginsburg had used the same quotation when she shifted positions.
Scalia said the prior opinion was resolved without reference to the abuse of discretion question. “As for my own culpability in overlooking the issue,” Scalia wrote, “I must accept that and will take it with me to the grave. But its irrelevance to my vote in the present case has been well expressed by Justice Jackson, in a passage quoted by the author of today’s opinion: ‘I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.’ ”
University of Chicago law professor Justin Driver wrote in the Georgetown Law Journal in 2011 that the Jackson quote is one of three often used to explain a shift in a judge’s thinking, Liptak notes.
The others:
• From Justice Joseph Story in an 1827 opinion: “My own error … can furnish no ground for its being adopted by this court.”
• From Justice Felix Frankfurter in a 1949 dissent: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”
Spelling error in first paragraph corrected on Dec. 24.
