Justice Scalia made what’s being called “a hugely embarrassing mistake” and an “epic blunder” after he wrote one of his characteristically dismissive and belittling dissents. Unfortunately it seems Justice Scalia (or his clerks) failed to do proper research and based an entire section of his dissent on a past decision that he completely mischaracterized.

A past decision that he wrote himself. Cue effect.

Maybe if he spent more time focusing on the law instead of fomenting revolution he could have avoided this….

Yesterday, the Supreme Court handed down a decision in EPA v. EME Homer, by a 6-2 vote. The Supreme Court upheld the EPA’s interstate transport rule. Not all that exciting.

But the sad attempt at fireworks came in the dissent, where Justice Scalia (joined by Justice Thomas because he’ll follow Nino to the gates of hell even if he’s totally wrong) ripped the EPA’s ongoing efforts to grab power:

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 [National Ambient Air Quality Standards].

But Professor Dan Farber of Berkeley noticed something curious. A look back at Whitman reveals that exactly the opposite happened: industry argued for cost considerations and the EPA resisted. And the author of this decision was, in fact, Justice Scalia. So that’s a bit of an embarrassing oversight.

Doug Kendall, the president of the Constitutional Accountability Center, was quoted by TPM:

“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,” Kendall said. “It is very unusual to see a passage that so clearly misstates the fundamental facts of a prior ruling, especially one written by the justice himself.”

Since the decision came down, Justice Scalia has amended the decision. Now Justice Scalia writes:

This is not the first time parties have 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 the contention that EPA should consider costs in setting NAAQS.

Except this now factually accurate statement no longer makes a lick of sense in the context of his argument. The original section header was the obviously Scalia “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” Now it reads, “Our Precedent.”

Buck up, Justice Scalia. Sure it’s an embarrassing screw up, but most of the legal community probably missed it. They were all too busy looking at the ATL Top 50 Law School Rankings.

The full original opinion is preserved on the next page. For good measure, the new opinion can be found here.


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