New York Times

WASHINGTON — There is an art to admitting mistakes on the Supreme Court. Justice Antonin Scalia demonstrated the proper technique in a dissent last week.

There are three steps to the Scalia culpa.

First: Issue a forthright admission. Responding to an accusation from Justice Ruth Bader Ginsburg that he had changed his position about whether the court could hear some kinds of appeals, Justice Scalia said her “stinging observation” was on the mark.

Second: Support the confession with a classy quotation from anotherSupreme Court justice who once had to explain an about-face. Justice Scalia chose Justice Robert H. Jackson, probably the finest writer ever to serve on the court.

Third: Return fire. Justice Scalia noted that Justice Ginsburg had just months ago also shifted positions and, what is more, had invoked the same quotation.

This, then, is how it is done.

“As for my own culpability in overlooking the issue,” Justice Scalia wrote, “I must accept that and will take it with me to the grave. But 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, Justice Scalia joined a unanimous ruling setting aside a federal appeals court’s decision in a class action case. The Supreme Court effectively reversed the trial court’s decision, but the justices seemed not to notice that the ruling they were actually reviewing, from the appeals court, had done nothing more than turn down an appeal without giving reasons.

When the same thing happened last week, Justice Scalia discovered what he called “a little snag”: In both cases, he said, the appeals court had been free to do what it did, which was nothing more than deciding not to hear an appeal. But the majority last week again effectively reversed a trial court decision not squarely before it.

To underscore his pot-kettle point, Justice Scalia cited Justice Ginsburg’s dissent in June in the Hobby Lobby case. In a footnote, she addressed the majority’s accusation that she had backtracked on the scope of a federal religious-freedom law.

In 1997, Justice Ginsburg joined an opinion saying the religious-freedom law, enacted in 1993, had done more than displace a 1990 Supreme Court decision that had declined to recognize religious exceptions under the First Amendment’s free exercise clause to generally applicable laws. The law, Justice Ginsburg said in 1997, had also imposed additional protections.

In the Hobby Lobby case, Justice Ginsburg disavowed that statement, drawing a rebuke from the majority.

“Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment,” she wrote, citing the quotation.

Both justices omitted the first part of Justice Jackson’s sentence, which appeared in a 1948 dissent. He, too, had joined an earlier decision without quite realizing its implications, but he was more direct about the possible roots of the problem. In the first part of the sentence, Justice Jackson mused about the “personal humiliation involved in admitting that I do not always understand the opinions of this court.”

No one likes to admit error, but judges are especially loath to own up to inconsistency or incompetence. They are, after all, meant to possess technical expertise, to respect precedent and to treat like cases alike. It may be bad for politicians to flip-flop. It is worse for judges.

“There is no reason why we cannot ask each justice to develop a principled jurisprudence and to adhere to it consistently,” Judge Frank H. Easterbrook of the federal appeals court in Chicago, then a law professor at the University of Chicago, wrote in 1982 in The Harvard Law Review. In a footnote, he thanked Justice Scalia, then a colleague on the law school’s faculty, for his “helpful comments.”

But there are limits to that unwavering ideal, as noted by Judge Richard S. Arnold, who served on the federal appeals court in St. Louis. Judge Arnold, who died in 2004, was seriously considered for the Supreme Court by President Bill Clinton. “Consistency is a virtue,” Judge Arnoldwrote in 1991, “but it is not the only virtue, and people who have never changed their minds may have simply stopped thinking.”

That still leaves the problem of how to explain a shift in a judge’s thinking, and it is here that the quotation from Justice Jackson comes in handy. It is “one of three available quips held in reserve for such occasions,” Justin Driver, a law professor at the University of Chicago,wrote in 2011 in The Georgetown Law Journal.

The second, from an 1827 opinion by Justice Joseph Story, has the virtue of age but little else. “My own error,” he wrote, “can furnish no ground for its being adopted by this court.”

But the third is a keeper.

“Wisdom too often never comes, and so one ought not to reject it merely because it comes late,” Justice Felix Frankfurter wrote in a 1949 dissent.

Professor Driver said that third adage is “the most commonly invoked language to acknowledge a judicial change of heart.” Justice Ginsburg has cited it, as has Justice Stephen G. Breyer.

The current term is not even three months old, but Justice Scalia’s forced admission of error last week suggests that it is off to a rocky start.

In the previous term, which started in October 2013, the court’s first 14 signed decisions were unanimous. The first dissent did not appear until the end of February. The first 5-to-4 decision did not land until April.

By the time the term ended in June, the justices were unanimous 65 percent of the time, the highest rate since 1940.

That harmony is unlikely to be repeated this term. Of the four signed decisions so far, only two have been unanimous.

The third one featured Justice Scalia’s apology, and it was decided by a 5-to-4 vote. The majority “tortures logic” and “distorts reality,” Justice Scalia wrote, using the kinds of phrases that litter opinions issued at the end of the term in June. But it is only December.