12 Comments

So why phrase this as a 'mistake'? Clearly it's an effort to misquote the OSHA response in order to claim expert evidence for his concurring opinion where none exists. If I turned that in as an undergraduate it would have meant an F. But this court is failing America at every turn so why not expect them to lie about the sources of their data?

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I am giving Justice Gorsuch the benefit of the doubt.

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This was written by a Supreme Court Justice and his clerks -- by definition,, the best of the best when it comes to appellate lawyers. IMO they don't make mistakes like this, nor would the experienced SCOTUS lawyers who regularly practice before the Court.

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Part of the issue, I think, was the haste with which it was written.

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I am not in his Chambers and don't know how he runs things. But your "benefit of the doubt" assumes the most charitable reading is he/they made a mistake as opposed to someone bring manipulative or having an agenda. Perhaps you attribute it to this case being too rushed to be accurate.

To me, that is the least charitable view because it assumes they are careless/lazy/stupid -- willing to write and release work they have not properly checked. If they don't have time, they should write what they have time for or don't write at all.

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To me, saying someone likely made a mistake is more charitable than saying they consciously tried to misread the reader. Don't you agree? I agree with you that, at that level, such sloppiness is difficult to excuse.

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I am certain your intent was to be charitable. Genuinely charitable. But my view of this error is the way I would view a failure to Shepardize a citation and thus not realize it had been overruled or questioned. I just can't see it as a mistake without also seeing the Justice himself in a poor light.

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But if this was a mistake, they need to change how they do things in his office. They need to read everything several times,, work longer hours, and check and recheck their work.

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Questions: Did the other Justices know this? And if so, don’t they have an obligation and responsibility to make the “mistake” known? If they didn’t or don’t know, why not? Don’t they have an equal obligation and responsibility to know this through researching and/or checking any claims presented by their colleagues as fact from the bench?

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I absolutely do think that Justice Gorsuch lied.

At that level of power, you can seek to be 95 percent accurate and fudge a little at the margins because it won't matter. And everyone knows it.

People will say it was a mistake as you do here and move on and anyone saying he is a liar with be marginalized or mocked.

Justice Gorsuch is an incredibly intelligent individual, but also sanctimonious and arrogant. He needs that extra 5 percent to make his arguments. Ninety-five percent won't do. So he fudged it.

And it won't be the last time either. Over time, conservatives will stop pointing out these "mistakes" because they will privately realize someone they highly respect is a bit of an egomaniac and will quietly accept it as a personality quirk. But really it is what it is - lying.

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This is a great piece/research Patterico!

Is this another example of Gorsuch's activist leanings (this time with subterfuge) as he's not the proponent of stare decisis he contended to be at his hearings. We know Alito wasn't afraid to enter into activist territory with his 5 point framework in response to the Voting Rights Act matter before SCOTUS last summer.

Where's the outrage on the right about the current "activist judges" on SCOTUS? Or is the activist judge outrage only when they don't like the outcome?

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