U.S. Supreme Court

A 'cringeworthy blunder' by Scalia? New corrected opinion is issued after profs notice mistake

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An error in a dissent by Justice Antonin Scalia on Tuesday did not go unnoticed—or uncorrected.

The error was in Scalia’s dissent to a U.S. Supreme Court decision siding with the Environmental Protection Agency in its defense of the cross-state air pollution rule, report the Wall Street Journal Law Blog, TPM and Josh Blackman’s Blog. The Supreme Court issued a new version without the error.


File photo of U.S. Supreme Court
Justice Antonin Scalia courtesy
of ABA Media Services.

Among the professors who caught the mistake are University of California at Berkeley law professor Dan Farber, blogging at LegalPlanet, and Case Western law professor Jonathan Adler, blogging at the Volokh Conspiracy.

Farber calls the error a “cringeworthy blunder” and “hugely embarrassing.” The problem? Scalia wrongly stated that the EPA had argued it had the authority to consider costs in a prior Clean Air Act case, Whitman v. American Trucking Association. “But that’s exactly backwards,” Farber says. “It was industry that argued for cost considerations and EPA that resisted.”

Scalia wrote the Whitman decision.

The new version of the dissent omits mention of which party made the argument. Instead, it says the prior case “confronted the contention that EPA should consider costs.”

The subhead of the section in which Scalia made the mistake has also changed in the new opinion. It originally read: “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” The corrected version says: “Our Precedent.”

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