My first thought when I read about this was oh wow, maybe he’s slipping and maybe somehow he’ll be forced to resign, which would be an apt, though belated, quid pro quo for for Sandra Day O’Connor’s resignation. But then a lawyer I know quite well pointed out that the Justices’ clerks write the opinions. Yes, Scalia missed it (that he got his own earlier opinion wrong of all things!), but the clerk wrote it. Poor clerk.
But then my legal expert went on to say something quite interesting. Opinions are circulated among all the Justices before they’re issued. At least one of them, the ones in the majority, must have noticed the error.
He thinks they deliberately refrained from pointing it out. And Scalia must know that.