SCOTUS Makes Up New Administrtive Law Standards out of Thin Hot Air

Joining such renowned scientists as Leonardo DiCaprio and Al Gore, five justices of the Supreme Court have stepped into the realm of politics and policy, left aside any concept of Constitutional limits on judicial power or the rule of law, and declared themselves experts on the global climate. This absurd decision, Massachusetts v. EPA, which can only be explained by the 5 justices' policy preferences in this area (as opposed to their ability to dispassionately evaluate a factual record and the legal standards), contorts the state of the law radically to achieve a policy end. Shameful.

The Chief Justice's dissent is powerful, and hopefully, is an indicator of the future direction of the court when the 5 legislators-in-robes step aside from their usurpation:

If petitioners' particularized injury is loss of coastal land, it is also that injury that must be "actual or imminent, not conjectural or hypothetical," Defenders of Wildlife, supra, at 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (internal quotation marks omitted), "real and immediate," Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (internal quotation marks omitted), and "certainly impending," Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990) (internal quotation marks omitted).

As to "actual" injury, the Court observes that "global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming" and that "these rising seas have already begun to swallow Massachusetts' coastal land." Ante, at 19. But none of petitioners' declarations supports that connection. One declaration states that "a rise in sea level due to climate change is occurring on the coast of Massachusetts, in the metropolitan Boston area," but there is no elaboration. Petitioners' Standing Appendix in No. 03-1361, etc. (CADC), p. 196 (Stdg. App.). And the declarant goes on to identify a "significant" non-global-warming cause of Boston's rising sea level: land subsidence. Id., at 197; see also id., at 216. Thus, aside from a single conclusory statement, there is nothing in petitioners' 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases. It is pure conjecture.

The Court's attempts to identify "imminent" or "certainly impending" loss of Massachusetts coastal land fares no better. See ante, at 19-20. One of petitioners' declarants predicts global warming will cause sea level to rise by 20 to 70 centimeters by the year 2100. Stdg. App. 216. Another uses a computer modeling program to map the Commonwealth's coastal land and its current elevation, and calculates that the high-end estimate of sea level rise would result in the loss of significant state-owned coastal land. Id., at 179. But the computer modeling program has a conceded average error of about 30 centimeters and a maximum observed error of 70 centimeters. Id., at 177-178. As an initial matter, if it is possible that the model underrepresents the elevation of coastal land to an extent equal to or in excess of the projected sea level rise, it is difficult to put much stock in the predicted loss of land. But even placing that problem to the side, accepting a century-long time horizon and a series of compounded estimates renders requirements of imminence and immediacy utterly toothless. See Defenders of Wildlife, supra, at 565, n. 2, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (while the concept of "'imminence'" in standing doctrine is "somewhat elastic," it can be "stretched beyond the breaking point"). "Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact." Whitmore, supra, at 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135. (internal quotation marks omitted; emphasis added).

At least the court only remanded to give the EPA another chance to explain their decision - Justice Stevens stopped short at crafting world-saving emissions standards for the EPA to implement. But as Justice Scalia notes:

Even on the Court's own terms, however, the same conclusion follows. As mentioned above, the Court gives EPA the option of determining that the science is too uncertain to allow it to form a "judgment" as to whether greenhouse gases endanger public welfare. Attached to this option (on what basis is unclear) is an essay requirement: "If," the Court says, "the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so." Ante, at 31. But EPA has said precisely that -- and at great length, based on information contained in a 2001 report by the National Research Council (NRC) entitled Climate Change Science: An Analysis of Some Key Questions[.] *** I simply cannot conceive of what else the Court would like EPA to say.

I've written on this before, when the DC Circuit made the correct legal decision. As I said then, "In addition to the activists and cities, no fewer than 12 States are plaintiffs here. That's 24 Senators and 151 Representatives - nearly a quarter of the US Congress! Surely they are not without political power. If those states wish to ensure the EPA is fixing global warming, the remedy is in the chambers of the Capitol, not in the courts."

The question is not whether or not global warming is a "crisis," or whether not the EPA should regulate car emissions. The question is whether five unelected judges should be able to dictate massive, unimaginably complex, economy-threatening policy over the objections of both the Executive branch and the Legislative branch, by taking a vague statute and assigning it meanings it couldn't possible have had when it was written.

There is no more inappropriate place for judicial law-making than in the realm global environmental policy. That five lawyers think they can or should go there, when actual experts struggle to predict what the climate will give us 10 days from now, is contrary to what the Constitution ever intended.

CORRECTION: Justice SteVens' name was misspelled above, and has been corrected.

It is emphatically the province of the judiciary to say what the law is, not what it should be?

Posner disagrees. The Chicago chapter of the Fed Soc and ACS sponsored a discussion on what Posner calls "pragmatic adjudication" -- here's an interesting summary (which also has a link to a podcast of the event).

"It so happens that everything that is stupid is not unconstitutional."

Justice Scalia said that beautiful little truism earlier today during an appearance with fellow Justice Samuel Alito.

I think much of the press - if it notices the event at all - will probably focus on his statements about the "independence of the judiciary" not being an unqualified good thing, leaving the context out, of course. Here's more greatness:

"Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides."

"The court could have said, 'No, thank you.' The court have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,'" Scalia said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking."

Scalia said courts didn't use to decide social issues like that.

"It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."

I hope Justice Owens was listening...

Naked Judicial Elitism on the Washington Supreme Court

In the Seattle Times, State Supreme Court Justice Susan Owens elucidates her respect for the wisdom of the people to choose their government, and by extension, democracy itself.

Johnson and other critics say Owens' position in both cases is proof that she is a liberal "activist" judge who is too willing to decide policy matters that should be left to the Legislature.

But Owens suggests there are times the court has to play such a role.

"The Legislature is really behind the times socially," she said during a recent interview with editorial writers at the Yakima Herald-Republic.

Wow.

The Legislature defines where we are socially, because they represent the "social" body that is our entire electorate. Who is she to say who's "ahead"” or "“behind"” that? And even if we are "behind,"” that'’s explicitly not the role of the judiciary to make those changes. This is tyranny of the elite stripped bare for all to see.

It's ironic that liberals are wailing and gnashing their teeth over conservatives "buying" seats on the Supreme Court, just because they dare to fund and run a competitive campaign. Do you think Owens' financial support from gay-activist groups had anything to do with her extra-legal votes in In re L.B. or Andersen v. King County? Nah... Not that I'm blind to the probable influence the BIAW would have on Johnson (among many reasons I think judges should be appointed), but at least he's not openly advocating judicial policy making. And frankly, I contend that the BIAW and Johnson's other bi-partisan supporters (as opposed to Owens' exlcusively liberal ones) support him because they know that the statutes as writen and the popularly elected legislatures that enact them are already on their side. All they need is a Justice who will follow the law instead of her predetermined policy predilictions.

The Post-Intelligencer calls the "legislating from the bench" attack a "slur" that threatens a "fair, impartial and independent judicial system." But Justice Owens is legislating from the bench - by her own admission. And you can't be "fair" or "impartial" if that's what you're doing. What's more, it's disturbing to see the P-I so ignorant of the larger danger of upsetting the careful balance of our government's seperated powers. A Judicial Superlegislature does nothing to protect our rights.

Justice Owens openly declares that she thinks it's perfectly appropriate for a Justice to make policy from the bench, when she and she alone decides where we should be "socially." For that reason alone, she's unsuited to be there.

On "Judicial Activism"

I hate this phrase. I really do. Use of the phrase usually constitutes some act of faith, meaning that it means whatever the person saying it thinks it does. For many conservatives - especially those without a lot of legal background - it generally means "judges who sit on cases that don't turn out the way we think they should not having looked at the actual case, like when criminals get off on 'technicalities'." For many liberals, it means "judges who strike down laws", or "make decisions", whereby they giddily point out that conservative judges are just as "activist". I think both of them are wrong in their understanding.

To me, a "judicial activist" is one who first makes a policy decision based on what they think the law SHOULD be, and then only after their mind has been made up, justifies it with some case law, statutes, or most egregiously, Constitutional Amendments that may or may not actually apply. This definition encompasses those who make decisions that fall outside the realm of justiciabilty, are manifestly political questions, or are not even within that court's jurisdiction.

Striking down laws is NOT, in my view, judicial activism. Sometimes they need and deserve to be struck down - but only under existing rules of law, not because the judge thinks they're bad policy. Making a decision based on analogy when there simply isn't case law, a statute, or some other source of law directly on point is likewise not offensive - so long as the decision rests within the logical scope of the law as it exists, and doesn't unilaterally expand some conception of rights, then such a decision is exactly WHY we have judges at all.

Every so often someone thinks they've "got me" advocating judicial activism. A few weeks ago, in my smoking thread, I was accused of it when I said I hoped small business owners would use the well developed doctrine of regulatory takings to seek compensation for the wrong that the Seattle City Council did to the owners of those businesses who will suffer for their actions. That's not activism in my mind because the legal doctrine is already well developed. Last week in one of my classes, I was accused of advocating it because I thought a judge who determined that a man who had sex with his ex-wife's minor adoptive daughter didn't need to prove with a Harvard study that his actions were bad for the other kids of the marriage. Again, I think that's within a judges power to decide, because it falls well within the logic and common sense of the existing statutory scheme even if that particular case's facts weren't specifically contemplated.

There is no question that under such a definition, there certainly ARE "conservative activist judges." I happen to think Justice O'Connor was such a justice (and to a lesser extent Kennedy), and that Harriet Miers would have been one as well. And that's why I'm not sorry to see J. O'Connor go, and why I was opposed to Ms. Miers' nomination. Where I see them, I oppose them. Even Justice Scalia, who so vocally opposes such an approach, can fall prey to the problem (the only plausible explanation for his concurrence in the Raich medical marijuana case decided last year). When he does it, I have no problem pointing out my disappointment.

But I think it's clear that liberals are MORE prone to this kind of "decision first, justification after" kind of "reasoning." I say that because most liberals espouse a "living Constitution," kept alive by judicial decision rather than the amendment process. This concept cannot exist without the ability of judges to make policy changes to text unchanged by the people's elected political representatives.

I know I can trust a judge when I occasionally see this in an opinion: "I personally think this law is ridiculous, and even potentially damaging. I would vote against it if I were a legislator. But this is not within my purview to decide, and therefore I decline to address the merits." You will never, ever see that in a Ginsberg or Souter opinion. You WILL see it from those most often attacked as "conservative judicial activists" - Thomas and Scalia. You see it in Alito opinions as well.

Judges - and Supreme Court Justices in particular - have grown far more powerful than the founders envisioned. Their decisions are unreviewable in many cases, and nearly impossible to get "undone". As such, they have the responsibility to ask themselves in every instance, "Just because I have an opinion on this topic, is it for me to make this decision?" When they refuse to do it, the balance of power among the three branches of government is upset, and we're faced with ridiculous efforts to counter it like gay marriage Constitutional amendments, further eroding the power of the document and the foundation of our country.