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.