Among the better legal blogs is The Wall Street Journal’s Lawblog. Recently, there was an interesting piece written by Jacob Gershman.

Gerhsman’s piece is about Justice Scalia getting it embarrassingly and profoundly wrong in a recent dissent. There is no doubt that what happened is an embarrassment for Justice Scalia, and you might wonder what the tenor of the conversation was between the justice and his law clerks after this was reported.

But, does it also raise a question about the degree of collegiality and communication on the Supreme Court as a whole? Opinions of both the majority and dissent are circulated. Why did no one say, “Justice Scalia, I know I’m just a law clerk for another justice, but you might want to check that paragraph?”  Or why didn’t a colleague say, “Antonin, you got this part wrong?” Gershman’s piece sets the table for that discussion:

Everybody makes mistakes — even Supreme Court justices. But a factual error in a Tuesday opinion by Justice Antonin Scalia was unusually glaring.

Hours after the Supreme Court handed down a ruling on Tuesday in an air pollution regulation case, legal observers spotted something wrong with the justice’s dissent.

The court revived an Environmental Protection Agency regulation that limited power-plant emissions blowing across state lines. In doing so, the court said the EPA could consider the cost-effectiveness of emission controls in deciding how much pollution a state must reduce.

In his dissent, Justice Scalia wrote:

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.

Problem is, it wasn’t the EPA making that argument back then, but the trucking industry.

“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. Either way, it’s a cringeworthy blunder,” wrote University of California-Berkeley law professor Daniel Farber.

The Supreme Court posted a corrected version of the dissent. The sentence now reads:

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 court also changed a subhead above that passage. It used to say, “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” It now reads: “Our Precedent.”

Over at Volokh Conspiracy, Case Western Reserve University law professor Jonathan H. Adler notes the irony.

“The worst part of it is that Scalia should know this because the author of the Supreme Court’s decision in Whitman v. American Trucking Assns was none other than Scalia,” he said.