Supreme Court

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

Our addled Supreme Court justices.


Frank Murphy, take a bow.

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 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.

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  1. In fact, the agency had taken the opposite position. Even more embarrassing for Scalia, he had written the decision in that case himself.

    Hey, hey, hey.

    In the famous words of Soupy Sales, “Let he who is without sin cast aspersions on glass houses.”


  2. The process by which Supreme Court Clerks are hired would make most people’s blood boil if they understood it. Basically the justice hire various assholes just out of law school and often cede enormous influence to them in crafting the opinions. A group of people who are largely unknown to the public, are accountable to no one other than the justices and have never practiced law have more influence over our laws that really any individual member of Congress.

    It is appalling. I would not let them hire clerks. Let them hire paralegals but no one with a law degree. If they are not healthy enough and vigorous enough to do their own work, then they need to retire.

  3. Why does Reason hate Diana Ross?

    1. They must be Florence Ballard fans.

  4. Senile people making incredibly important legal decisions. That pairs nicely with corrupt, venal people writing the laws. What a system!

  5. Mark Levin’s Men In Black has an interesting chapter on justices who have been on the bench long after they should have been removed — the joys of a life appointment.

    1. Yeah, but replacing them with fresh young Democratic hacks who can’t tell the difference between the Constitution and the Declaration of Independence doesn’t seem like a good idea, either.

    2. Ask a Supreme Court justice to retire? A dirtier day’s work has never been done!

  6. While he is by no means a perfect justice, I really hope that he does not leave the bench anytime during Obama’s or (please God no) Hillary’s respective reigns of terror. Then again, aside from Rand (who is still flawed), there is not much to get excited about on the GOP side. Come to think of it, please just hold out until our first libertarian president is elected, OK Antonin?

  7. I don’t know if I’m the only one who remembers when Thomas committed the grave sin of *gasp* not hiring Ivy League clerks, and Scalia offered up a full-throated defense of the tyranny of the Ivy League in the federal judiciary.

    It seems Scalia’s “best and brightest” have failed him.

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