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June 2012
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Mistake proves justice a mere mortal

By RUTH MARCUS Washington Post Writers Group

WASHINGTON - "We are not final because we are infallible," Supreme Court Justice Robert Jackson famously observed, "but we are infallible only because we are final."

Now - actually, six decades later - comes Justice Antonin Scalia to demonstrate that neither aspect of that aphorism is entirely correct.

Like the rest of us mortals, Scalia, it turns out, is fallible. He made an embarrassing whopper of a mistake in a dissent Tuesday.

Then he showed that even the last word of the Supreme Court is not exactly final, rewriting the offending passage (albeit without acknowledging the change, which would have been even better but may have been too much to ask).

It's going to take a while to explain the facts of the case, so let me be clear: I come to empathize with the justice, not to scoff at him. If you're in my business, you know how extraordinarily easy it is to make a mistake, and how exquisitely painful it is to acknowledge.

The majority in the case, involving Environmental Protection Agency rules covering power-plant emissions that cross state lines, upheld the regulation. Scalia, joined by Justice Clarence Thomas, dissented, reading from the bench for emphasis.

Scalia's beef with the EPA was that it substituted its judgment for that of Congress, inventing a cost-effectiveness approach that appears nowhere in the statutory text. So far, so scathing. But as part of his indictment, the justice, in a section titled "Plus Ca Change: EPA's Continuing Quest for Cost-Benefit Authority," accused the EPA of being a recidivist re-interpreter.

"This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation," Scalia thundered, citing a 2001 ruling in which, he said, the court also "confronted EPA's contention that it could consider costs" in setting air quality standards.

But - oops - it was the party challenging the EPA rule in that case, not the agency, that wanted costs to be considered. And - double oops - Scalia himself wrote the opinion.

No mistake remains buried in the age of the Internet. Within hours, the law professors were correcting the justice. "A cringe-worthy blunder," wrote Dan Farber of University of California at Berkeley, observing that "either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him."

It did not take the liberal blogs and interest groups long to pile gleefully on. "Epic Blunder," said Talking Points Memo. "Scalia's Mistake Exposes His Ideological Agenda," blared People for the American Way. "Uh-Oh, Scalia Screws Up Royally. Time To Retire," read a post on Daily Kos.

By Wednesday morning, the court had quietly corrected the error. The characteristically snippy "Plus Ca Change" header was replaced with the grayer "Our Precedent." The accusation that the EPA was at it again was similarly dialed down: "This is not the first time parties [emphasis mine] have sought to convert the Clean Air Act into a mandate for cost-effective regulation." As Farber noted, "Of course, as corrected, the case no longer fits Scalia's overall thesis of the 'unelected officials' trying to override congressional policy."

Others may rejoice at Scalia's embarrassment. No doubt the justice invites it, with his air of acerbic certitude. But perhaps these revelers haven't made mistakes.

I have - and I think I remember every single mortifying one, including 24 years ago, when I incorrectly, sloppily reported Scalia's position on statutes banning flag-burning (he believes they are unconstitutional), and 26 years ago when, math-challenged, I accidentally added a decade to Vermont Sen. Patrick Leahy's age.

Scalia is doddering because he didn't remember the specifics of a 13-year-old case? Please, I sometimes can't remember what I wrote last week. You don't have to be a senior to have a senior moment.

Justices have law clerks to save them from such errors; I shudder to imagine the bloody scene in Scalia's chambers, post-discovery. Journalists, at least some of us lucky ones, have copy editors; they have saved me countless times. But in the end, the responsibility is ours. When good journalists make even picayune errors, our response tends to be nausea followed by self-loathing.

For the justices who like to criticize journalists for flubbing their analysis of opinions on deadline, and within tight space constraints: Maybe what happened to your colleague will incline you toward a more charitable view.

For the rest of us, journalist and civilian alike, it's a useful reminder: Mistakes happen. What matters is what happens next.

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