U.S. Supreme Court Justice Antonin Scalia’s highly publicized error in a recent dissent highlights a surprising truth: when it comes to catching substantive mistakes, the only editors justices really have are their own law clerks.
And one of those clerks might have made the flub in the first place.
Scalia’s widely-reported mistake came in his dissent in EPA v. EME Homer City Generation, involving regulation of downwind air pollution that is produced in one state but travels to others. On page 12 of his dissent, Scalia mischaracterized the Environmental Protection Agency’s position taken in the 2001 Whitman v. American Trucking Associations case—a Clean Air Act precedent that Scalia himself wrote.
The court issued the decision April 29, and after numerous blogs and listervs reported the error, the court posted a corrected version of Scalia’s dissent—presumably prepared by Scalia and the court’s reporter of decisions, whose office prepares written decisions for publication.
If you’re wondering why the reporter of decisions did not catch the error in the first place, retired reporter Frank Wagner has an answer.
“That is not the kind of mistake the reporter looks out for,” Wagner said in an interview. “The chance the office might detect an error of this particular sort is miniscule,” Wagner said, recalling that substantive errors turned up in opinions only about 10 times during his 23-year tenure.
If the reporter of decisions is not looking out for major errors in content, then it is up to the justice’s law clerks to vet the justice’s writings—along with justices who are joining their opinions. Justice Clarence Thomas joined Scalia’s dissent in the EPA case.
All nine justices have different writing habits, and Scalia’s are fairly well-established.
“Justice Scalia leans heavily on his law clerks when it comes to the drafting of opinions,” according to court scholar Todd Peppers, author of two books on law clerks. “Law clerks routinely prepare the first draft of majority, concurring, and dissenting opinions. Moreover, the draft opinions are typically circulated among the other Scalia law clerks before the draft is forwarded to the justice himself for review and editing.”
As a result, Peppers concludes, “if Justice Scalia followed his traditional practices, then all of his law clerks, as well as the justice himself missed the factual error” in the EPA dissent.
In a 2013 New York magazine interview, Scalia said he looks for at least one clerk every term “whose predispositions are quite the opposite of mine.” Such a clerk, Scalia said, looks out “for the mistakes I’ve made in my opinions. That’s what clerks are for—to make sure I don’t make mistakes.”
If that is the case, says University of Pittsburgh School of Law professor David Garrow, “some clerk right now is in the deepest doo-doo in decades at the court.” Garrow added, “The fundamental question in this is, are people checking these opinions?”
Contact Tony Mauro at firstname.lastname@example.org.