Getting it Wrong: Even Supreme Court Justices Do It and What that Means for Grading Students

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Grading, marking, and giving feedback on student exams, papers, and projects can be wearing, which perhaps explains why professors can succumb to the temptation to bemoan student "bloopers" and mistakes. 

But at the end of this semester,  a mistake in Justice Scalia's dissent in EPA v. EME Homer City Generation provides some perspective.

From the original opinion, here's the passage in Justice Scalia's dissent:

[Section] D. Plus Ça Change:
EPA’s Continuing Quest for Cost-Benefit Authority

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the alloca­tion problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Re­spondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is not for EPA or this Court to determine.

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 NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmak­ing—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. . . .

[emphasis added]

And from the current opinion, here's the corrected passage:

[Section] D. Our Precedent

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Respondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Congress, not this Court, to determine.

This is not the first time parties have 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 the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect.

[empasis added]

Justice Scalia misidentified the party that argued on behalf of considering costs in Whitman v. American Trucking - - - an opinion that Justice Scalia authored in 2001 - - - and reversed it.  Indeed, the EPA opposed considering costs in Whitman v. American Trucking.  

The mistake has attracted attention: TPM labels  it an "epic blunder,"  Salon calls it an "embarrassing error," and WSJ says it was "cringeworthy" and "unusually glaring."

Why the mistake?  Blame law clerks or sloppiness.  Recite "to err is human."  Or perhaps the mistake simply fit with the dissent's "shadow argument" (the EPA has been on a quest to expand its authority, as conveyed in the subtitle to the section) and so the actual fact became misremembered or overlooked.

But whatever the possible explanations, it's a good reminder for professors as we read "mistakes" by students who are, afterall, students, and do not have law clerks, proofreaders, years of experience, the highest position in the legal field, or the ability to correct mistakes after the final version of the exam or paper is submitted.