Message To Law Clerks: Protect Your Bosses From Embarrassment

Justice Scalia made what some are describing as an “epic blunder” in his dissent yesterday in Environmental Protection Agency v. EME Homer City Generation, in which the Supreme Court upheld the EPA’s right to regulate coal pollution that moves across state lines.

Justice Scalia wrote the following in this dissent (joined by Justice Thomas):

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting [National Ambient Air Quality Standards]. 

As Sahil Kapur explains over at Talking Points Memo, however, there is a problem with this statement:

The problem: the EPA’s position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

This kind of factual mistake in an opinion is unforgivable.  As the author of the opinion, Justice Scalia must of course take responsibility for the error.  But, as a former state Supreme Court law clerk myself, I can tell you that the heads of some U.S. Supreme Court law clerks are now bobble heads. 

One of the most important functions of a judicial law clerk is to protect his/her boss from the public embarrassment and humiliation of this kind of mistake. Every statement and citation in a draft opinion must be checked and rechecked. Factual errors must be brought to the attention of the judge, and sometimes even the entire court.

So, fellow law clerks, do your jobs!  Protect your bosses from embarrassment!!  Catch those potentially humiliating errors before the opinion is released!!