Antonin Scalia’s recent misstep

May 1, 2014 | By | 1 Reply More

The media is now hammering on U.S. Supreme Court Justice Antonin Scalia’s recent misreporting of the facts of a case involving the EPA. It was a glaring error, indeed. As reported by the Associated Press:

The mistake in Scalia’s opinion concerned one section of about a page and a half in which he contended that the EPA was again asking for the authority to weigh costs against benefits in determining how large a reduction in emissions it mandates… Scalia went on to say the case “is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation.” He cited as authority the high court’s 2001 decision in Whitman v. American Trucking Associations, in which the court said that such an analysis was not allowed under a section of the landmark anti-pollution law. The author was Scalia. The problem is that it was the trucking group, not the EPA, that wanted the agency to use a cost-benefit analysis.

Scalia’s recent gaffe pales in comparison to Scalia’s repeated claim that he decides cases based on “textual originalism.” Scalia’s purported theory was was shown to be incoherent and self-serving in a comprehensive article by Judge Richard Posner of the 7th Circuit Court of Appeals. In that article, Posner makes an airtight case that Scalia has bungled the legal analysis of dozens of cases. According to Posner, “originalism” is essentially a reckless embodiment of the confirmation bias. Judge Posner’s critique goes even further, however, accusing Justice Scalia of repeated disingenuous interpretations of the cases in order to attempt to lend credence to his pet theory.

I appreciate that the news media has caught Justice Scalia on a slipshod piece of writing. If only the media would now take the time to look at Scalia’s much larger and much more dangerous claim that he is dutifully following the directives of the nation’s Founders when he is actually carrying water for the Chamber of Commerce.

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Category: Corporatocracy, Law

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

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  1. Erich Vieth says:

    I’m going to add a few comments I left on the parallel post on this topic from my FB page:

    I’ve heard that Scalia was asked about Judge Posner after this blow up (there was a lot of back and forth in writing), responding to a question about Posner by saying something like: “Posner? I think he’s a judge in Chicago” or something like that. Perhaps it’s schadenfreude that I’m experiencing, but I did attend a speech Justice Scalia gave to a huge Law Day event in STL several year ago. I can vividly remember that he could barely contain his disgust regarding gays, a topic he spontaneously raised several times (not in response to any question from any audience member).

    Here’s a 2012 article that summarizes the dispute. http://www.huffingtonpost.com/eric-segall/scalia-posner_b_1883750.html


    Here’s another source filled with links: http://abovethelaw.com/2012/09/the-benchslap-dispatches-justice-scalia-on-judge-posners-hatchet-job/

    Here’s one more post illuminating the different styles of animosity involved here: http://joshblackman.com/blog/2013/10/16/posner-v-scalia-rounds-xvii-and-xviii/

    I think the quote I was trying to remember was this one: SCALIA: He is a court of the appeals judge, isn’t he?
    WALLACE: Yes.
    SCALIA: He doesn’t sit in judgment of my opinions as far as I’m concerned.
    WALLACE: You sit in judgment of his opinion?
    SCALIA: That’s what happens.

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