Antonin Scalia screwed up big time, and seemingly every elite American law scholar is completely aghast.
In the course of dissenting against the six-justice majority, which affirmed the EPA's authority to regulate coal emissions that cross state lines, Scalia pulled a gotcha by suggesting that the Court's ruling contradicted a unanimous 2001 opinion in another case about the agency's regulatory authority.
But he got it all completely backwards. The two rulings are entirely consistent. Scalia had simply misremembered the issue. "He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted," wrote Dan Farber, blogging at Legal Planet. What makes matters worse is the justice who wrote the 2001 opinion affirming EPA flexibility was none other than Scalia himself.
Sahil Kapur has a nice roundup of reactions. But they concern themselves mostly with how unthinkable the error is rather than grappling with what this says about Scalia's devolution.
Reporters are familiar with the maxim that if you're going to pull a fact check, you better be 100 percent correct, or prepared to endure tremendous ridicule. But this is actually worse than that. And it 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 .
In opinion journalism (as opposed to fact checking) opportunistic inconsistency (as opposed to imperfect diligence) is the mark of a hack. It's a big challenge for people who write opinions for a living to keep track of a career's worth of their own polemics, but an honest pundit will either account for changing views, or maintain old opinions whether or not they conflict with normative or partisan preferences. That way, even if he forgets his columns from a decade ago, he won't be caught in embarrassing contradictions like this.
But Charles Krauthammer is just a writer. Scalia makes law. I can't think of a more damning indictment of a Supreme Court justice than failing a consistency test that normally applies to opinion journalists. Even if he didn't have an army of clerks tasked with catching errors large and small, Scalia only pantsed himself because he lacks the integrity of a decent liberal or conservative pundit.
And as long as we're applying journalistic tests to justices, the Court changed Scalia's dissent without any fanfare or formal correction after outside observers spotted his blunder. Scalia's already confirmed to a lifetime position on the Court, but I really wonder if the Senate would overlook it if a future nominee committed an error of such significance.
Brian Beutler is a senior editor at The New Republic.