SCROTUS - Supreme Court Really Ought To Uphold Scruples

When I was a young child, we proudly displayed a certificate stating that my grandfather could argue cases before the Supreme Court. This made me immensely proud. I believed that the Supreme Court was the purest of institutions, full of well educated, virtuous, and morally-driven altruists who put aside their personal agendas to pass down righteous verdicts. I have been so enthralled with this mythos, that I dismissed warning signs of the fallacy of my belief. So, when SCOTUS (Supreme Court of the United States) recently ruled that the Environmental Protection Agency (EPA) could not set a national policy to replace coal with renewable energy, I was dumbfounded and heart-broken simultaneously.

Let’s begin with the background of the case which pivots on the role of the EPA. The EPA was established by an overwhelming majority in Congress in 1970 to protect public health and welfare across the US. That same year, Congress also passed the Clean Air Act. Section 111 of the Clear Air Act directs the EPA to regulate stationary sources of substances that “may reasonably be anticipated to endanger public health or welfare.” The Clean Air Act also directs how the EPA should do this: by determining and implementing the best system of emission reduction (BSER). Then, in 1977, Congress strengthened Section 111 by striking the word “technological” from the original “best technological system of continuous emission reduction”. In this second vote, Congress purposefully clarified the need for the EPA to be able to choose non-technological fixes to reduce emissions, such as a shift in how power is generated. We’ll return to this critical point in a minute.

Following the time line forward to 2015, Obama signed the Clear Power Plan, an EPA plan to reduce carbon emissions from electricity generation. About 1/4 of US emissions come from electricity generation and this would have been a massive step forward in driving down the US’ emissions. The heart of the plan was never controversial - it was acknowledged by all that piecemeal individual plant improvements would cost far more than a regulatory approach and only achieve small emission reductions. Nonetheless, the 2015 Supreme Court saw fit to immediately strike down the regulatory approach of the Clean Power Plan. SCOTUS did this by intervening in a lower court’s review of the case West Virginia versus the EPA, an unprecedented interference with a lower court’s proceedings. A few years later, Trump repealed the Clean Power Plan altogether. Interestingly, market forces had already prompted the power industry to meet the plan’s original targets using the electricity generation shifts suggested in the plan, so repealing it was rather futile.

Skipping to the present, President Biden recently declared that given the failure of Congress to pass climate legislation, he would make new federal emissions rules. Once again, the Supreme Court acted with lightening speed. Even before the new regulations were announced, SCOTUS produced a new opinion on the old West Virginia vs. the EPA case, lest any fool think they could act so reckless as to try to prevent global warming. In this latest ruling, on an already adjudicated, repealed, and defunct policy, the justices argue that the EPA does not have the authority to require a shift in how electricity is generated at a federal level. This recent opinion grants that the EPA can regulate individual plants emissions, which is ineffective and more expensive, but can not force a move away from coal because this involves a ‘major questions doctrine’. The majority opinion states that Congress never intended to delegate authority of this breadth to the EPA. But, as noted in the timeline above, Congress did vote to delegate exactly this authority, and not just once, but twice.

The majority’s opinion states that the EPA’s remit to determine the “best system of emission reductions” does not include regulation of emissions. If you need to shake your head in wonder, you are not alone. Not only had the Supreme Court blatantly ignored Congress’ directives to the EPA, but with the stroke of their six pens greatly increased the likelihood that we will exceed 1.5 degrees of global warming. In case you’ve forgetten, scientists agree that we need to reduce our emissions by 50% from 2019 levels by the end of this decade if we are to avoid warming above 1.5 degrees celcius, and consequental catastrophic climate change. And SCOTUS’ latest ruling, stripping the EPA of regulatory powers, means the US will struggle to hit the emission reduction target. If the US isn’t meeting its commitments to reduce emissions, why should our competitors or the poorer nations of the world?

Rather than concluding that SCOTUS doesn’t care about the future of humanity or Congression directives, I hoped I was missing something. I am not a judicial scholar. Perhaps the justices had their reasons and we should be wary of granting any federal agency the power to direct energy policy. Since several reads of the majority opinion left me unable to untangle their arguments, I turned to the dissenting opinion of the court.

The three dissenting judges’ response was scathing. First of all, they agreed with me that Congress had explicitly directed the EPA to regulate harmful emissions using the BSER. And that the EPA, and other expert agencies, exist exactly so they can address issues as and when needs arise. The dissenters also pointed out that by jumping on Biden’s statement of intent, the majority justices didn’t even wait to see what the new EPA regulations might look like. Or indeed, what their colleagues would say in the pre-enforcement judicial review which would immediately follow any regulations set out by Biden. Instead, SCOTUS chose to jump into the political process midstream, once again, chipping away at our faith in the integrity of the judicial process. Kagan, one of the dissenting judges, said “The court appoints itself, instead of Congress or the expert agency, the decision-maker on climate policy. I cannot think of many things more frightening.”

Disturbingly, this dubious behavior of the Supreme Court is not an isolated incident. The current court is breaking with precedent more and more, using the shadow docet - where opinions aren’t even generated - more and more, and blatantly ignoring ethical conventions. Justice Thomas has repeatedly refused to recuse himself from cases and events that are interlinked with his wife’s involvement in far right political mobilizations, including the January 6th insurrection. That’s bold, and frightening. As GHW Bush’s Attorney General, Donald Ayer put it “what is new is the court’s frequency and brashness in achieving these radical outcomes, and its willingness to do so often without an honest explanation and acknowledgement of what is actually going on”.

So it seems my disillusionment with SCOTUS is accurate. I can see no reason other than some bizarre notion of self interest for not wanting to curb coal emissions. Perhaps it is all best summed up by Al Gore’s statement that the most recent West Virgina vs. the EPA ruling was the “result of decades of influence and coordination of the fossil fuel lobby and its allies to delay, obstruct, and dismantle progress toward climate solutions”. Or perhaps even more neatly summed up in my new name for the Supreme Court - SCROTUS: Supreme Court Really Ought To Uphold Scruples.

So where did my childhood belief in an ultra-ethical Supreme Court came from? Turns out, it was a myth perpetuated to obviate concerns over the growing power of the judiciary. Before 1925-ish, it was openly acknowledged that Supreme Court Justices were partisan. One justice acted as president Polk’s campaign manager, others ran for president themselves, or held political positions prior to sitting on the bench. No one expected the justices to be nonpartisan. Indeed, partisan fidelity was more important than legal ability for presidential nominees for the Supreme Court. However, unlike today, this openly partisan supreme court was far less powerful. But about 100 years ago, the court’s expanding power was secured in the Judiciary Act of 1925, pushed through by Chief Justice (and past president) William Taft. In particular, the Supreme Court was now allowed to choose which cases it heard.

Combining the Judiciary Act powers with the power to strike down laws and statutes, granted to the courts in Marbury v. Madison, the court now was able to direct the flow of, and decide on, the fate of laws and regulations. Judicial supremecy had arrived. Prior to the Judiciary Act, it was believed that the people were the ultimate arbiters of constitutional authority, through the power of the vote. History professor, Rachel Shelden, argues that it was at this time that judges and lawyers began pushing the idea that the courts were outside of politics, in order to alleviate fear of the courts’ new powers. Today, with that nonpartisan myth in hand, we are still granting more power to the judiciary. Presidents and Congress now often punt difficult issues to the courts, publicly declaring that the courts should decide. I used to find that comforting.

It’s pretty clear to me that we need some serious Supreme Court reform. Term limits, a binding Code of Ethics, more transparency, and so forth are all being considered. I hope they succeed. I will certainly be doing my bit by encouraging others to vote this November for representatives who will support Supreme Court reform. Add this to the growing list of reasons to rally the original guardians of the constitution: we, the voting people.