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.