The legal community has been buzzing since Justice Scalia issued one of his dissents last Tuesday.
Justice Antonin Scalia’s factual error has been called “unprecedented” by legal experts. As Talking Points Memo noted,
It’s common for the Supreme Court to make typographical corrections and insubstantial edits to a decision after its release. But it’s exceedingly rare to see a factual error that helps form the basis for an opinion. Legal experts say Scalia’s mistake appears to be wholly unprecedented in that it involves a justice flatly misstating core facts from one of his own prior opinions…
Scalia was dissenting from a 6-2 decision upholding the Environmental Protection Agency’s authority to regulate cross-state coal pollution. To help back up his judgment, he cited a 9-0 opinion he wrote in 2001 called Whitman v. American Trucking Association. But the EPA’s stance in that case was the exact opposite of what Scalia said it was in Tuesday’s opinion.
Scalia has been a polarizing figure in the legal community, often criticized for using his obvious brilliance to twist precedent and law in order to get his preferred result. Critics note that his professed “originalism” is employed very selectively in service of his ideological preferences. Tuesday’s error, however, is of an entirely different order.
And that raises some eyebrows–and questions.
Where were his law clerks? Didn’t they alert him to the error? How could he misstate facts from a decision that he himself had written —and not just misstate some peripheral matters, but totally mischaracterize the parties basic positions?
Scalia has become more irascible in recent years; more contemptuous of longstanding Court rules and dismissive of the ethical guidelines that apply to others in the judiciary. This latest behavior raises a troubling question: is the Justice getting senile? And if so, what–if anything–can we do about it?
When the Court was first established, lifespans were shorter. The average tenure of a Supreme Court Justice through 1970 was 14.9 years. Among those who’ve retired since 1970, it has jumped to 26.1 years.
Maybe we should consider a 20 year term for Justices. Long enough to shield them from political pressure, but not long enough to risk having them serve well into their dotage.
I don’t know if Scalia is senile. And I’m not so sure I conclude anything from this big legal error other than “excrement happens.” It was sloppy, someone dropped the ball and didn’t cite check. I’ll bet it doesn’t happen again.
As for Scalia’s increasing irascibility, it may be he’s no more unhinged than others who share his views.
A twenty-year term limitation, with no opportunity for reappointment, might be worthy of further discussion. Our system is so dysfunctional, though, that I doubt it could manage to get the needed constitutional amendment done.
Bill Wilson’s last paragraph is profound; lifetime appointments make no sense at any government level. Scalia and Thomas; Frick and Frack. Both are egomaniacal and and believe their decisions should never be questioned; thus, Scalia freely (and probably without proof reading) publishes his every word while Thomas believes he owes no one an explanation for his decisions. Both are dangerous in their positions for life in the highest court in the land.
Is it possible to be appointed to SCOTUS if one is not approaching senility, even premature senility?
Peter Cook, the wonderful British comedian, at Beyond the Fringe, did a very funny piece on being a miner. In the monologue, he compares being a miner with being a judge, (starting at about 7:36 in the attached link). He says, “The trouble with being a miner: When you’re too old and tired and ill and sick and stupid to do your job properly, you have to go. But the very opposite applies with the judges.” This is classic, and appear to be correct: https://www.youtube.com/watch?v=ofUZNynYXzM
We elect senators and congressman, how about we elect the supreme court judges as well? Why not?
But first we have to get the Citizen’s United overturned, and the ruling last month, out of our politics.
Term limits, of course!
And pay them minimum wage to boot and make them purchase health insurance through the exchanges? Why not. Us little people have to, why not the government workers? Just kidding.
Our government checks and balances are not doing their job!
Peter Cook: Brilliant; I’d forgotten his contribution to the world of comedy.
Falls right in with the religious right theory of creationism. A precise description of how God (over a period of 3 million years) created Coal by first blowing down all the Tree’s with a big wind.
The LAST thing we should do is elect judges. The Founders knew what they were doing when they created an independent judiciary. We should ensure that there are mechanisms for dealing with impairment, but the whole point of Separation of Powers is to act as a countermajoritarian check on the idiots we DO elect.
In states with elected judges, we’ve seen the influence of campaign contributions–not to mention the need to pander to voters prejudices– on the justice system.
Electing judges would be a worse disaster than we have. The end of an independent judiciary, the maintenance of ideological purity and institutionalization of demagoguery. If you think we have a problematic legislative branch, elect the SCOTUS and it will make the legislators look like kindergarten.
If we elected judges, it WOULD be the last thing we did.
The problem is not only with Justice Scalia.
I have on file a transcript of court proceedings where New York State Supreme Court Justice Kevin Dowd is talking about a law school allegedly building a urinal in his honor during recital of a custody and visitation agreement. Judge Dowd is very much on the bench and who knows what is in his head after such pronouncements.
For years I appeared in front of another judge, Carl F. Becker of Delaware County Supreme Court, New York State, who was either sleeping in front of a jury, or became belligerent, denigrated attorneys and parties, allowed himself sexist conduct and disregarded and misrepresented whole portions of the record in order to arrive at decisions he wanted. So it does not surprise me at all that Judge Scalia does that, too. It appears that absolute judicial immunity for malicious and corrupt acts produced a result that was unexpected (allegedly) only by the authors of this doctrine – blatant disregard of the law by the judiciary. Because – who is going to control or discipline them? And how?
I had a nightmarish experience with a judge who misstated material facts in two cases – which was clear from the record of those two cases, sanctioned an attorney for his own mistakes, affirmed his own mistakes when a motion to vacate, renew and reargue was brought and had the audacity to send the decision to the attorney disciplinary committee, to put the final nail into the attorney’s coffin with his own mistake. It is as if the judge is asserting his right to say “white” when he sees “black”, and to punish anybody who dares to differ. Do judges really have such power. Shouldn’t the public be able to remove such judges when they blatantly disregard the law and engage in what is politely called “intellectual dishonesty” on the bench?
The interesting detail is that the judge in question, the Chief Judge of the 5th Administrative District, New York State, Judge James C. Tormey, “coincidentally” punished the attorney for making a motion to recuse and based it, at least in part, on the attorney’s federal lawsuit against the judge himself.
When Sheila Kennedy talks about potential senility of a U.S. Supreme Court justice, my very practical thought is – who is going to be the kamikaze to raise that issue to the judge’s face? Attorneys? They will lose their licenses for saying that. Who will and should raise such issues?
Who will take off the bench the judge (Dowd) who talks about a law school building urinals in his honor? Or is it accepted behavior on the bench?
Who will take off the bench the judge (Tormey) who attempted to engage a court employee in political espionage against another judge, got sued by her, and New York State had to pay her $600,000 of taxpayers’ money to get him out of the mess. He was NEVER disciplined. And when that episode from this life was mentioned in a motion to recuse, he misrepresented the record and sanctioned the person who raised it. Should such people be on the bench or even practice law?
Should the judge who sleeps at jury trials or characterizes written arguments as female attorneys as “catfight” be on the bench?
These judges do this for years, but discipline falls on the whistleblowers of their misconduct, and the judges continue to act with complete impunity.
I wholeheartedly support the author for raising the sticky issue of Judge Scalia’s potential senility, but it is not only Judge Scalia who may be becoming senile – yet, who should and may SAFELY raise that question without sacrificing his or her livelihood?
Maybe it isn’t just other states that have judicial issues or the US Supreme Court. Dan Brewington has filed a Petition for Rehearing and a Motion for Judicial Disqualification for Justice Rush. Brewington v State decision was issued May 1, 2014. Brewington filed the Petition and Motion pro se. Serious mistakes have been made in this decision but only someone who was familiar with the over 2000 pages involved with not just a criminal trial but with a divorce action would ever be able to sort through all of the information. Another reason that people don’t challenge judges is money. One could never afford to pay attorneys forever to follow through on a case like Brewington’s. For more information the Indiana Law Blog post June 9, 2014 at 5:10 pm. Justice Rush stands for retention this November.
“Justice” (true oxymoron) Scalia and Clarence The Sexual Harasser’s intellectual dishonesty was the 3000 lb elephant in the room seen by all but the intellectually disabled when they violated US election law by appointing Governor Bush, who subsequently expedited America’s demise. Don’t muddy the water of this debate with further acts of intellectual oversights. I believe the technical term for our current dilemma involves watercraft sans propulsion.
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