Follow-up to “Scalia’s Curious Memory Lapse”: Is the Supreme Court about to limit its holding in Garcetti v. Ceballos?

Okay, first things first.  And the first thing is that when you (okay, when I) put the word “after” instead of “before” in a key sentence, and the error (which in this instance occurred because of a cut-and-paste sentence-edit typo in a complex sentence) makes the sentence nonsensical, you’re gonna be stepping on your own punch line.*  Which is what I did in my post Tuesday titled “Scalia’s Curious Memory Lapse,” in the first sentence of a paragraph that, corrected, reads:

Ah, but that’s because Lane was unaware of the 2006 opinion in Garcettti v. Ceballos.  The second one issued, that is, less than a month after* Samuel Alito was sworn in as Sandra Day O’Connor’s replacement; not the first one issued, in the last few days before O’Connor formally retired. (Yes, as I explain in that post of mine from last January that I linked to above, Garcettti v. Ceballos has quite an interesting little twist to it, procedurally.)

The second thing is, um … I think I’ll just quote my exchange with Robert Waldmann in the Comments section, which should suffice:

ROBERT: I was puzzled when reading the first few sentences of this post, because I had assumed it was about *another* amazing Scalia memory lapse. The other unrelated astonishing error was Antonin Scalia’s totally incorrect citation of an opinion written by eminent Jurist uh Antonin Scalia [link].

“”Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted,” Farber wrote on the environmental law and policy blog Legal Planet. “This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! 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.””

Wow. Too bad supreme court justices can’t be impeached for senility (or for the standard conduct of signing opinions and dissents actually written by their clerks). Too much worse that no Republican will be impeached ,while Republicans control the House, or convicted, while there are 34 of more Republican senators. But two amazing howlers in about a week must be one for the history books.

ME: Robert, yeah, when I wrote the post and the title two days ago, I didn’t know yet about that weird error by him in his dissent in the EPA case. I should have changed the title yesterday; I think I’ll tweak it now, even though the post is old now. [I did.]

The “memory lapse” I’m talking about in this post isn’t actually a memory lapse, though. Scalia well remembers exactly what the situation was in Garcetti, and what the result was, because it’s critical to the arguments in Harris v. Quinn, which they’re deciding this term. It’s probably already been decided, and the dissent is being written now.

Thanks, Robert, for your comment.

I want to add here that I suspect that Scalia’s comment at the argument on Monday in Lane v. Franks that was the main subject of my earlier post–“I’ve never heard of this distinction, the First Amendment protects only opinions and not facts.  I’ve never heard of it.”–suggests that the Court is about to significantly limit its holding in Garcetti.

Which would be a good thing for prosecutors who want to inform their bosses that the police officer who sought the search warrant at issue apparently fabricated the “probable cause” for the warrant, or that the police officer who obtained the confession from a suspect did so by lying to the suspect, or that the police officer who dealt with the victim or witness insist or ensure that the victim or witness identify the suspect in a lineup as the perpetrator.  Or some such.  And it probably would be pretty good for innocent suspects, too.

Not so good, though, for cops who want to frame people.  Or for prosecutors who do, and aren’t on good terms with a colleague or two or with a subordinate. And you never know who might turn out to have a conscience.

This would be a big deal.

Meanwhile, about that real memory lapse by Scalia, in his dissent in EPA v. Homer City Generation, you can read the latest on it here.  The AP’s Mark Sherman nails it.

That federal gummint is always trying to get away with something! Even impersonating a trucking association.

*Sentence edited to correct a cut-and-paste typo. 4/2. Sighhh.