Tags: Supreme Court | Antonin Scalia | Robert H. Jackson

NYT: Justice Scalia Artfully Explained Flip-Flop on Appeals

Image: NYT: Justice Scalia Artfully Explained Flip-Flop on Appeals
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By    |   Tuesday, 23 Dec 2014 11:22 AM

In a recent exchange with a colleague, Justice Antonin Scalia demonstrated there is an "art form" to admitting mistakes if you're a sitting Supreme Court Justice, according to The New York Times.

First, "issue a forthright admission" of error. After fellow Supreme Court Justice Ruth Bader Ginsburg accused him of changing his position on whether the court could hear certain kinds of appeals, Scalia admitted that her "stinging observation" was correct.

Second, the Times said, "support the confession with a classy quotation from another Supreme Court Justice who once had to explain an about face." Scalia chose Justice Robert H. Jackson, who served on the court from 1941 to 1954 and was known for his extraordinary writing skills and self-deprecating candor.

Third, "return fire." Scalia noted that a few months earlier, Ginsburg had shifted her position and used the identical quotation from Jackson.

"As for my own culpability in overlooking the issue," Scalia wrote, "I must accept that and will take it with me to the grave."

He added, however, that "its irrelevance to my vote in the present case has been well expressed by Justice Jackson, in a passage quoted by the author of today’s opinion: 'I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.'"

Last year, Scalia joined a unanimous ruling setting aside a federal appellate court decision which "had done nothing more than turn down an appeal without giving reasons," according to the Times. Effectively, the high court had reversed a trial court decision "not squarely before it," something Scalia opposes.

When the same thing occurred last week, Scalia noticed what he termed a "little snag": in both cases, the appeals court had done nothing more than decide not to hear an appeal. But the majority last week had again "effectively reversed a trial court decision not squarely before it," the Times observed.

Responding directly Ginsburg's criticism of his own inconsistency, Scalia noted that Ginsburg had done the same, pointing to her dissent in the Hobby Lobby case, in which she responded to the majority's criticism of her for backtracking on the scope of a federal law protecting religious freedom.

In a 1997 decision, Ginsburg argued that a religious freedom law enacted four years earlier had given Americans additional legal protections. But in the Hobby Lobby case, Ginsburg disavowed that position, drawing a rebuke from the court majority. And, like Scalia, she invoked Justice Jackson's comments.

But neither Scalia nor Ginsburg mentioned the first part of his statement, in which he pointed to the "personal humiliation involved in admitting that I do not always understand the opinions of the court." 

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In a recent exchange with a colleague, Justice Antonin Scalia demonstrated there is an "art form" to admitting mistakes if you're a sitting Supreme Court Justice, according to The New York Times.
Antonin Scalia, Robert H. Jackson
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2014-22-23
Tuesday, 23 Dec 2014 11:22 AM
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