As Jonathan Adler promptly pointed out in a Volokh Conspiracy post, Justice Scalia made an embarrassing gaffe in his dissent Tuesday in an EPA case. In short, he misstated the position that the EPA had taken in a 2001 case (a case in which he had written the majority opinion). His misstatement misframed the lead-in to his sub-argument that the Court’s ruling on Tuesday was in conflict with its ruling 13 years ago.
There is good reason for folks to be surprised by Scalia’s error. The gaffe also gives Scalia’s critics ample occasion to deride the error, and I won’t fault them for having fun doing so, as I won’t dispute that I and others would likely be doing the same for a blunder by a liberal justice.
But, given the frenzy on the Left over the gaffe, I think that it’s important to put it in proper perspective. For starters, Scalia’s error was utterly immaterial to the legal rationale for his dissent. It affected only his lead-in to one argument and had zero impact on the merits of that argument. (The inconsequential nature of the error is presumably what explains the otherwise surprising fact that none of the other justices or their clerks evidently noticed it.) More broadly, the genuinely momentous errors that justices make—the sort of errors that might merit the adjective “epic” that some have extravagantly applied to Scalia’s gaffe—involve getting the law wrong by misreading or misinterpreting constitutional and other legal provisions.
Fortunately for Scalia, his most fervent critics are vulnerable to what I call Anti-Scalia Derangement Syndrome—a condition that leads those with animus against Scalia to get unhinged and make fools of themselves. In a great post yesterday evening, Jonathan Adler exposes the latest victim of ASDS, a fellow by the name of Brian Beutler.
Yesterday Beutler wrote an essay for the New Republic modestly titled “Scalia’s Epic Blunder Exposes His Partisan Hackery.” The URL for the essay hilariously reads “Supreme Court Justice Scalia Makes Huge Error Journalist Never Would.” (For ease of reading, I’ve altered the punctuation.) Unfortunately for Beutler, he proceeds to make a series of his own blunders.
As Adler details, Beutler gets Scalia’s gaffe wrong: Beutler mistakenly asserts that Scalia “misremembered the issue” in the 2001 case and, as a result, erred “by suggesting that the [majority’s holding on Tuesday] contradicted” the ruling in that case. Adler shows further that Beutler makes other errors of the very sort that he faults Scalia for and that Beutler’s broader condemnation of Scalia “ignores the whole of Justice Scalia’s jurisprudence on statutory interpretation and administrative law.”
It’s especially funny that Beutler recites “the maxim that if you’re going to pull a fact check, you better be 100 percent correct, or prepared to endure tremendous ridicule.” But it turns out that Beutler isn’t prepared to endure the ridicule that he deserves. In tweets last night responding to Adler, he called Adler’s smackdown “silly” and falsely claimed that he didn’t misdescribe Scalia’s error. And despite criticizing the Court for not making a “formal correction” (as Adler points out, the Court in fact did follow its usual formal process), Beutler, as of the time I’m writing this, hasn’t acknowledged or corrected his errors or shown any signs that he will.
“Partisan hackery,” indeed.