Scalia’s Factual Flub Is Part of a Long Supreme Court Tradition

When Supreme Court Justice Antonin Scalia issued
his
dissent in EPA v. EME Homer Air City Generation
earlier this week, his opinion included an embarrassing
error. Referring back to the 2001 case Whitman v. American
Trucking Associations, Scalia claimed that the Environmental
Protection Agency had argued “it could consider costs” while
setting air quality standards. In fact, the agency had taken the
opposite position. Even more embarrassing for Scalia, he had
written the decision in that case himself.

Or at least he was identified as its author. It is rarely clear
how much of the writing in a Supreme Court decision is the work of
the judge and how much is the work of the justice’s clerks; this
may well be a case not of poor memory but of poor editorial
oversight. David Garrow’s 2005 article “The
Brains Behind Blackmun” demonstrated just how much control over
his output a justice can cede to his staff, to the point where one
memo from a clerk to Justice Harry Blackmun included the words
“I do not really know what your views are on this case, but I can
see no reason not to join this”—this in reference to a high-profile
case that had been argued six months earlier. Blackmun may be
an extreme example, but he was not necessarily a unique one.

When justices do produce their own work, there is
always the possibility that their acuity isn’t what it used to be.
Justice Joseph McKenna was so incompetent at the end of his term
that, in the words of his colleague William Howard Taft, he once
“wrote an opinion deciding the case one way when there had been a
unanimous vote the other, including his own.” Garrow wrote about
those situations in another article, “Mental
Decrepitude on the U.S. Supreme Court,” which shows that such
highly respected figures as Taft and Thurgood Marshall were losing
their mental faculties while they were still on the court.

I interviewed
Garrow about his work back in 2005. In my write-up, I said that
he

demonstrates in uncomfortable detail that the Supreme
Court is an institution not just of laws but of men, and that since
the 18th century some of those men have suffered from senility,
severe depression, even drug addiction. In the late 1940s, Justice
Frank Murphy was hooked on Seconal and then Demerol, and “some of
his closest acquaintances were convinced that the Justice was
regularly purchasing illegal drugs.” He was hospitalized more than
once, and during his absence he instructed a colleague to cast his
votes for him. In at least one case, “his” position was conjured by
committee, with two justices and Murphy’s clerk collaborating to
invent an opinion for the phantom judge.

To read the rest—including the story of how William O. Douglas,
after retirement, “continued to show up for work, apparently
convinced that he was still on the Court”—go here.