Sunday, May 4, 2014

Scalia’s Anti-Government Stress Disorder

       Cliven Bundy and Antonin Scalia have never met, but they have in common a psychiatric condition that belongs in the textbooks if it is not already there: anti-government stress disorder. The disorder stems from an outsized ego and a deep-seated resentment of unwelcome authority and manifests itself at times in confused perceptions of reality held only by those who suffer from the condition.
       Bundy has displayed his condition by squaring off against federal agents the past month over the $1.1 million he owes for grazing his cattle on government-owned land for the past 20 years. In Bundy’s distorted perception of reality, he is a patriot and guardian of constitutional rights instead of a lawbreaking deadbeat.
       Scalia has not taken up arms against the government, though he did tell a law school audience last month [April 20] that if taxes go too high, “perhaps you should revolt.” But like Bundy, Scalia sees himself as a beleaguered patriot and guardian of constitutional rights in dubious battle against overpowering forces, including benighted adversaries in all three branches of the national government who lack his keen vision and wisdom.
       Scalia’s disorder led him astray last week with an embarrassing factual mistake in his dissenting opinion in a case, Environmental Protection Agency v. EME Homer City Generation, [April 29] — a factual mistake so blatant that the court corrected it within less than 24 hours. The mistake was all the worse for Scalia because he mischaracterized a decision in an earlier EPA case that Scalia himself had written.
       The new case was one that Scalia acknowledged was “not of earth-shaking importance,” but he was incensed enough to read much of his dissent from the bench. EPA had erred, in Scalia’s eyes, in adopting what he admitted was likely a “desirable” result on the issue of controlling cross-state air pollution. But the agency, according to Scalia, had disregarded a “clear and unmistakable standard” in the law Congress had passed on the issue.
       To simplify, Congress has included in the Clean Air Act a requirement — the so-called Good Neighbor Provision — aimed at protecting downwind states in the East from air pollution emitted in particular by coal-fired power plants in upwind states in the Midwest and South. The provision requires states to adopt plans that prevent power plants and the like from emitting any air pollutant “in amounts which will … contribute significantly” to pollution in other states.
       To implement that law, EPA developed the so-called Transport Rule, which essentially requires 27 upwind states to reduce emissions of nitrogen oxide and sulfur dioxide according to standards set by EPA. The standards are to be based on air pollution that could be eliminated “cost-effectively.”
       In a 6-2 decision, the Supreme Court upheld the EPA’s approach. Justice Ruth Bader Ginsburg called it “a permissible, workable and equitable interpretation” of the law. Three liberal colleagues joined the opinion, but so did two of the court’s conservatives: Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy.
       In dissent, Scalia saw the EPA as making up the approach on its own in the face of an “unambiguous” statute. Even while calling the law “stupid,” Scalia said the episode was “a textbook example” of why many Americans believe they are governed “not so much by their elected representatives as by an “unelected bureaucracy.”
       EPA’s mistake, Scalia explained in his written opinion, was just like one the agency had made — and the court had corrected — in a decision in 2001. Back then, Scalia recalled, the EPA had wanted to apply a cost-benefit analysis in enforcing another provision of the Clean Air Act, but the law passed by Congress did not allow that approach.
      Unfortunately for Scalia’s critique, he got the facts wrong. In Whitman v. American Trucking Associations (2001), it was industry groups, not EPA, that had asked to adopt a cost-benefit approach. EPA wanted to enforce the law as Congress had written it. And Scalia should have known since he himself had written the decision in the earlier case.
      When a sharp-eyed law professor pointed out the error to the court’s Reporter of Opinions on the same day, the passage was quickly rewritten on line to say that “the parties,” rather than the EPA, had sought a cost-benefit approach. Gone too was a taunting subhead: “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” The new subhead: “The Court’s Precedents.”
      Some legal observers dismissed the mistake as a mere typo, but it was more than that. Scalia fixed in his mind an image of the EPA as an out-of-control bureaucracy and misremembered the past to align with his view of the world.
        Scalia takes off against other parts of government in much the same way. When the court considered the Voting Rights Act two years ago, Scalia cited its overwhelming approval by both chambers of Congress as evidence that it was all wrong. When Roberts led the court in a narrow ruling on campaign finance law in 2007, Scalia accused the chief of “faux judicial restraint.” In Scalia’s disordered mind, the rest of government is so often so very wrong — and he alone is not afraid to say so.



  1. This account is fair as far as it goes, but it ignores that some of Scalia's own AdLaw jurisprudence is responsible for what he's compleaining about. Exhibit A is his opinion in City of Arlington v. FCC.

  2. Not to put too fine a point on it, Justice Scalia has suffered an obvious cognitive decline over the last couple of years. He's aging very badly, perhaps due in some ways to his obesity and fairly heavy smoking and drinking. The net effect is that his behavior during oral arguments has degraded to a simple repetition of Fox News talking points, and he us unable to recall even very recent precedents. Although Scalia has been a revolting public figure, it's sad to watch his obvious intellectual decline

  3. Could we impeach Scalia for mental disability at this point?