Mortals on the High Court

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."

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