Bob Barnes of the Washington Post has a nice recap of the partisanship surrounding Justice Scalia’s error in a recent case in which he mischaracterized a precedent (a precedent whose opinion he authored). Justice Stevens made a mistake like this in a case as well, and Eugene Volokh offers more, some corrected, some not.
These mistakes are easy to flag as mistakes because there is another precedent to compare—the mistake consists of how a prior case is characterized. But consider another kind of mistake: where a Court opinion mischaracterizes the law in a way that changes the law in a major way, perhaps through inadvertence. That’s what happened with a case on the standard for permanent injunctions a few years ago, eBay v. MercExchange. This kind of error is much more serious than the kind of error Justice Scalia made, which changed neither the holding of a case nor the standards lower courts would apply to a legal issue. The error I described has changed the law in profound ways, and the Court has never acknowledged that it might have resulted from an error.
Here’s my analysis from a recent article in the Emory Law Journal, Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law.
Inadvertence occurs when the Court changes the law without consciously attempting to do so, through attempts to restate existing law in line with the writing Justice’s values. Of course, it is possible that some of these misstatements of the law are intentional, either on the part of a Justice or Justices or a clerk, as a surreptitious means of shifting the law without alerting the other Justices of the shift. But the issue of such devious motivation is very difficult to prove, and it is enough for my purposes to treat all cases of legal misstatements as those of inadvertence.
Consider the Supreme Court’s recent treatment of the standards for issuing permanent injunctions. In eBay Inc. v. MercExchange L. L. C., the Supreme Court reversed a “‘general rule,’ [of the United States Court of Appeals for the Federal Circuit] unique to patent disputes, ‘that a permanent injunction will issue once infringement and validity have been adjudged.’” Unremarkably, the Supreme Court, in an opinion by Justice Thomas, held that the question of the issuance of a permanent injunction must be judged on a case-by-case basis through the application of judicial discretion. It rejected the Federal Circuit’s special rule for patent injunctions. The surprise in the case came in the Court’s statement of the “well-established principles” applicable to the issuance of permanent injunctions:
According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion.
A major problem with the Supreme Court’s recitation of this supposedly “well-established” four-part test is that the test did not exist before. Professor Doug Rendleman explained that “[r]emedies specialists had never heard of the four-point test.” There was a familiar four-part test for the issuance of preliminary injunctions, but it was not this same test. The test for preliminary injunctions, which looks in part at future likelihood of success on the merits, “make[s] no sense as applied to permanent injunctions.”
So how did this new test come into being in eBay? Professor Laycock explains what appears to be Justice Thomas’s inadvertence:
EBay and many of its amici, and the U.S. Solicitor General, who was supporting MercExchange, all referred to some version of four traditional considerations relevant to injunctive relief. They did not all cite the same four factors, and none of the lead briefs offered anything so flat footed as the Court’s formulation. The Court appears to have mostly taken its four-part test from the district court, which took it from one earlier district court opinion; putting irreparable injury in the past tense appears to have been an innovation by Justice Thomas or one of his clerks. And because the opinion gives no hint how any of the four parts of the test apply to the facts of the case, its abstract pronouncement has no real content. The case was litigated by an all-star cast of Supreme Court lawyers, but none of them consulted a remedies specialist.
But Court inadvertence takes on a life of its own. The eBay test has now been cited and applied by numerous lower courts, and the Court recently reaffirmed it as the “traditional four-factor test” last term in Monsanto Co. v. Geertson Seed Farms. “And once again the Court appeared oblivious to any difference between permanent and preliminary injunctions.”
In the eBay and Monsanto cases, the law moved, significantly, through apparent inadvertence. The term “inadvertence” might suggest some randomness, but I expect inadvertent mistakes to more systematically reflect the value judgments of the Justice drafting the opinion. The causal mechanism for such a bias is straightforward: an error in stating existing law (or inadvertent change of law) in a draft opinion is less likely to capture the attention of a Justice reviewing a draft opinion if the error is in line with what the Justice expects the law to be.
The eBay case provides a nice example of the nonrandomness of inadvertence. In applying the (new) four-part test, the Court’s analysis in Monsanto increased the burdens on plaintiffs seeking permanent injunctions. Before eBay, the common understanding was that it was up to a defendant to raise the question of the public interest as a kind of affirmative defense if the defendant believed the injunction sought by the plaintiff did not serve the public interest. Under the new test, however, the plaintiff must demonstrate that the public interest “would not be disserved” by a permanent injunction. As Professor Laycock asks: “Might this mean that benefits to the public interest cannot count in favor of issuing the injunction, but that harm to the public interest is an absolute reason not to issue it? Did Justice Thomas choose that phrasing deliberately in eBay, or might it be inadvertent?” Whatever Justice Thomas intended, he has certainly written or signed onto a number of opinions in recent years that make it harder for plaintiffs to obtain an injunction and easier for defendants to seek modifications of injunctions that ease the burden on defendants. His inadvertence appears to line up with his values.
 Douglas Laycock, Federal Interference with State Prosecutions: The Cases Dombrowski Forgot, 46 U. Chi. L. Rev. 636, 670 (1979) (“It reads as though the Court were unaware of any case after Douglas, but the Court could have deliberately created that impression.”).
 Id. at 669–79 (providing detailed analysis to determine possible Supreme Court Justices’ motivations in ignoring relevant precedent in Dombrowski v. Pfister, 380 U.S. 479 (1965), and concluding that the reason for ignoring precedent was likely inadvertence).
 547 U.S. 388, 393–94 (2006).
 See id. at 391.
 See id. at 393–94.
 Id. at 391 (citations omitted).
 Doug Rendleman, The Trial Judge’s Equitable Discretion Following eBay v. MercExchange, 27 Rev. Litig. 63, 76 n.71 (2007); accord Doug Rendleman & Caprice L. Roberts, Remedies: Cases and Materials 273 (8th ed. 2011).
 Rendleman, supra note 83, at 76 n.71.
 See Douglas Laycock, Modern American Remedies: Cases and Materials 426 (4th ed. 2010) (emphasis added). The test also suffers from other problems, such as that the first and second elements appear to be asking the same question. Id. at 426–27.
 Id. at 427.
 See id. (“There was no such test before, but there is now.”).
 See id. (“By early May 2010, eBay had been cited more than 4,100 times.”).
 130 S. Ct. 2743, 2757 (2010).
 Douglas Laycock, Modern American Remedies 26 (2011 Teachers’ Update).
 130 S. Ct. at 2757 (“It is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunction should issue under the traditional four-factor test set out above.”).
 See Laycock, supra note 85, at 426–27.
 eBay, 547 U.S. at 391.
 Laycock, supra note 90, at 4.
 See, e.g., Monsanto, 130 S. Ct. 2743; see also Horne v. Flores, 129 S. Ct. 2579, 2593 (2009) (“The party seeking relief bears the burden of establishing that changed circumstances warrant relief, but once a party carries this burden, a court abuses its discretion ‘when it refuses to modify an injunction or consent decree in light of such changes.’’’ (citation omitted) (quoting Agostini v. Felton 521 U.S. 203, 215 (1997))); Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 375–76 (2008) (“Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”).