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.

The College Years of Justice Thomas

An extraordinary interview in Business Week with Justice Thomas, focusing on his college years, his activities, the truth behind the meme that he himself is a product of affirmative action, and more. A sample:

Why do you think some people are so eager to cast you as a beneficiary of affirmative action?
That was the creation of the politicians, the people with a lot of mouth and nothing to say and your industry. They had a story and everything had to fit into their story. It discounts other people's achievements. Ask Ted how many all-nighters he pulled. It discounts those. It's so discouraging to see the fraudulent renditions of very complicated and different lives of people who were struggling in a new world for them. Everything becomes affirmative action. There wasn't some grand plan. I just showed up.

Read the whole thing. The more I read and learn about this man, the more respect I have for him.

SCOTUS: The Movie?

Senator Arlen Specter has once again introduced legislation to put cameras in the Supreme Court, citing the increased willingness of Justices to speak with the media.

I think it's a bad idea. It's not as if the transcripts of oral arguments are unavailable, or spectators excluded, or the reasoning of the Justices concealed. But it would mean that video clips would be shown - necessarily out of context due to time constraints - nightly on the news. And lawyers may attempt to play more to the audience at home than to address the specifics of the legal questions to the judges. In how many political ads might an out-of-context reducto ad absurdum hypothetical posed to an attorney appear?

And frankly, I think any courtroom cameras invite a profound collapse of dignity. Think Judge Judy. Or the OJ trial.

Limiting the public access to either live attendance or easily available transcripts limits the contextual problems unique to video without sacrificing transparency - or dignity.

Other thoughts?

In Defense of Justice Thomas

For all those who want to know the truth behind the most-snickered-at-Justice-in-any-law-school-class:

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive--and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.

That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity.

Read the whole thing.

What Are the Justices Saying Off the Bench?

Here's a very interesting piece in Slate about the increased press time our Supreme Court Justices are willing to engage in, and what they are - and, more interestingly, are not - willing to talk about.

I think it's good - the more the public understands the difference between judicial philosophies, the more likely they are to make an informed decision when they vote for the person who appoints judges, or the Senators who confirm them. Or, for that matter, when they vote for judges in the several states. (Moreover, I think that debate favors a more conservative, humble judiciary, but even if it didn't, more information for voters is usually better.)

But the pitfalls of loose-lipped jurists certainly exist, and are worth a pause to consider. Any other thoughts out there? Does increased time before the cameras risk increasingly politicizing what is supposed to be the non-political branch of government?

Man bites dog

Per SCOTUSblog: dog bites man, man wins!

Breyer vs. Scalia: The Movie

Here's the video of the ACS/FedSoc Breyer/Scalia discussion I blogged about yesterday, available in either full video or just the audio.

Scalia and Breyer, Head to Head

This is just good stuff:

Scalia is charming and, —as ever, —riotously funny. For each time Breyer says his own constitutional approach is "complicated" or "hard," Scalia retorts that his is "easy as pie" and a "piece of cake." And if this debate mirrors a marketplace of ideas, Breyer will make the sale through the earnest personal connection of a Wal-Mart greeter, while Scalia opts for the aloof certainty of the Tiffany's salesman: "Sure, you can buy some other, cheaper constitutional theory, but really. Ew."

A fun look at some good - and illuminating - banter and philosophy behind the bench.

Supreme Court Hears Important Antitrust Case Today

SCOTUSblog lays out (in plain English) Bell Atlantic Corp. v. Twombly (U.S. No. 05-1126) here.

The plaintiff-respondents allege a conspiracy on the part of the Baby Bells and other competitive local exchange carriers (CLECs) (read the big guys) to prevent incumbent local exchange carriers (ILECs) (read, the little guys) from entering formerly monopolized markets. In support of this averment, plaintiffs offer ... well nothing ... at least not until they get a shot at discovery. The district court dismissed the claim on the pleadings.

The 2d. Cir. reversed, holding no evidence was necessary--indeed, that the burden on antitrust claimants is "relatively modest." Among other curious rulings, the 2d Cir. would shift antitrust pleading's "plus factors"--necessary where there are hazy allegations such as the conspiracy here alleged--to after discovery is completed. What pleading?

The plaintiff-respondents principally argue notice pleading. They say Fed. R. Civ. Pro. 8(e)(1) & 9(b) are broad enough to encompass bare assertions of conspiracy--even under the Sherman Act, where the S. Ct. has been tightening the screws on plaintiffs for decades. Treble damages and attorney fees are more than enough to incentivize fishing in every single nook of every business. The 2d Cir.'s standard would create a real moral hazard--an industry of antitrust investigation to the extent one does not already exist.

I think the S. Ct. will see the plaintiff-respondent's claim for the fishing invitation it would seem to be, and dismiss the case.

As those in antitrust can attest, Prof. Drake thinks this one's huge. Oral arguments should be here later today or tomorrow.

Activists, States Demand SCOTUS Fix Global Warming Whether It Has Authority Or Not

That's not, of course, what the briefs state. But that's exactly what's going on.

The Supreme Court is set to hear arguments this week on the case of Massachusetts v. EPA. The EPA determined that neither the 1970 Clean Air Act nor its 1977 amendments authorized it to regulate automobile CO2 emissions to combat global warming, and that even if it did, it certainly did not require that it craft such regulations. (Since the environmental fear du jure in the '70s was global cooling, this seems to me to be a reasonable conclusion.)

The case turns on issues of standing, and to what extent Congress gave policy discretion to the EPA. The DC Circuit barely found standing by the plaintiffs to hear the case, and when it did, determined that the EPA was within their statutory bounds in declining, for a variety of reasons, to regulate CO2 as a greenhouse gas. Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005). (This opinion is fairly short and well worth a read, short of the policy-oriented rantings of the dissent.)

Liberal groups like the ACS are already wringing their hands over this "momentous environmental issue." But it's not an "environmental issue" at all. It's a political one, and the DC Circuit made the right call. The Plaintiffs essentially want the Court to read the language of a 30-year-old statute to require an agency to pass a regulation that only they will approve of, in order to create an uncertain remedy for an uncertain harm that in any event was completely unforeseen when the statute was written.

This is precisely why Congress meets every single year - so we're not stuck in the Carter years forever. 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 liberal argument is that if the Supreme Court denies Massachusetts et al. the relief they seek, then the environment is doomed. Hogwash. It is simply returned to the political processes where it belongs. If the Court makes the right call on this and affirms the D.C. Circuit, nothing whatsoever forestalls Senator Kennedy from introducing legislation that would amend the Clean Air Act in such a way that would make plaintiffs happy, nor are the other 534 legislators proscribed from voting for it. (He doesn't even have to wait for the court!) The only obstacle seems to be a policy disagreement by a majority of Americans via their elected officials, which, last time I checked, is not grounds for relief under Article III. This is nothing more than an attempted policy coup by a political minority who can't be bothered to actually muster votes - and that is nothing less than tyranny.

The Courts have neither the functional ability nor the Constitutional authorization to hand down from on high "correct" environmental policies. Environmental policy is complex and technical, with thousands of disparate interests at stake, and thousands of ways to address thousands of problems. This is exactly the kind of issue for which we have a large, representative, deliberative body with fact finding powers, who upon reaching a conclusion can best be said to have arrived at the aggregate will of ALL the people - not just those few who take Al Gore seriously.

Scalia and Alito at the Federalist Society Convention

C-Span has video (real player) of Scalia and Alito at the recent Federalist Society Convention. Interesting stuff ...

And now for something completely different

Now that this trivial matter of the election is behind us, we can now focus on the political body that wields the most power in our system -- the Supreme Court. The Scotus Blog is a great resource on oral arguments, cert petitions, briefs and the like. I've added it to the blog roll as well ...

Can Conservative Judges Still Be Confirmed?

After the war, this is my biggest concern about the new political order. But Edward Whelan argues that strong conservative Judges and Justices can still be confirmed:

Skeptical? Consider the last Republican appointee to the Court to be confirmed by a Democrat-controlled Senate — Clarence Thomas in 1991. That Senate had 57 Democrats and only 43 Republicans, and the swirl of allegations gave Democrats plenty of cover to vote against the nomination. Still, 11 Democrats voted for Thomas, and he was confirmed by a 52-48 margin.

A lot has changed since 1991, but the changes cut in both directions. The Democrats have gotten more unified — and nastier — on judicial confirmations since then, but the high-profile politics of a Supreme Court nomination enhances the case for confirmation of a strong pick. Opponents can’t rely on obscure procedures to block the nomination. They need to make their case openly, and in the Internet age, unlike with the 1987 nomination of Judge Bork, their distortions won’t go unanswered.

More importantly, the conservative case against liberal judicial activism has powerful public appeal across a broad swath of the political spectrum. Opponents of a strong nominee will have to be ready to pay a high price for their opposition. Plus, President Bush, having appointed two white males to the Court, still has the diversity card to play, so a nominee who is a committed proponent of judicial restraint and also a female or a minority would have added political punch.

Here's hoping.

Justice Scalia at 20

"Indeed, Scalia's tenure on the Court may be understood as an exercise in standing athwart history yelling stop--athwart the decades-long succession of cases by which the judicial power was transformed and the justices became lawgivers. During his confirmation hearing in 1986, Scalia told the Senate Judiciary Committee, "My only agenda is to be a good judge." It is clear in retrospect--if it was not at the time--that "a good judge," to his mind, was not the sort that had often preceded him to the High Court."

Well said. Read the Weekly Standard's whole piece.

I think Chief Justice Roberts and Justice Alito will be better - more consistent, more humble, and less caustic. And I think Chief Justice Rehnquist truly deserves the most restorative trailblazing credit. But Justice Scalia's efforts have made the ascendancy of a more restrained and conservative judiciary possible. Without him, I don't know that we have a Roberts or an Alito, and I think Justices O'Connor and Kennedy would have "evolved" much more than they did.

"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...

No More Knock & Announce

The Supreme Court ruled today in the case of Hudson v. Michigan that if police officers have a warrant, they no longer have to knock and announce themselves as police before entering a home. This is a shift made possible by the retirement of Justice O'Connor.

I don't really understand why this is controversial. The sanctity of the home must be protected, but that's why there's a warrant process. But in case I had any doubt, Justice Breyer reminded us why we need more Alitos and Robertses on the court:

It weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection.

The Constitution has a "knock-and-announce protection?" That must be in the Eleventeenth Amendment.

The only "practical value" I can see in the old rule is the value to the criminal who has extra time to hide or destroy evidence, or even escape. Once the warrant is issued, due process has been upheld. The ONLY benefit to requiring an announcement is to the criminal flushing drugs down the toilet.

---

UPDATE: Here's the opinion itself (PDF). And I was wrong initially, as I should have suspected I would be when relying on the Seattle Times for legal analysis. The knock-and-announce rule is still in effect, but the exclusionary rule is not applicable to it under these circumstances.

Check out the facts behind the arrest in particular. The door was unlocked, not broken down. There were large quantities of drugs and firearms, including a loaded gun hidden in the cushions of the chair in which the suspect was sitting. I just can't see how this is unreasonable.

A Military Victory Over Law Professors

Today the Supreme Court unanimously reversed the 3rd Circuit's decision striking down the Solomon Amendment on free speech grounds. The amendment requires Universities who accept federal funds to allow military recruiters on campus despite the incompatible policies on homosexual hiring between the military and Law School career service offices. The case is Rumsfeld v. Forum for Academic and Institutional Rights, and Chief Justice Roberts' opinion is here.

Last week, a professor told me that although he respected the military and students who chose to serve, he despised the Solomon Amendment. I don't understand how you can reconcile that. It seems to me self-evident that where you ask for tax money from the government, it's OK for the government to ask for a little something in return, such as helping maintain the military which protects the silly academics' right to be opposed to the military. If academia despises the Solomon Amendment, they should likewise despise the government funding that allows them to take home 6 figures, and reject it.

And honestly, how the 3rd Circuit could come to the opposite conclusion after South Dakota v. Dole is simply beyond me. "Don't Ask, Don't Tell" is a silly policy, but it's Constitutional, and it doesn't erase the academic dependence on federal tax dollars, nor does it cut the strings that legitimately come with that cash.

To me, the despicable thing isn't that the Solomon Amendment exists, but that it should have to exist. Let's face it. The law schools opposed to it aren't free speech advocates. That's merely their back door. Nothing stops them from openly and loudly opposing the military policies, and in fact they do just that with disclaimers on E-mail and signs in the hallways saying, "The JAGs are coming, but that doesn't mean we like it." In fact, if they REALLY believed in free speech, they would let MORE groups with whom they disagree access the Law School and its students, so we can make our own decisions after hearing all sides.

The actual opposition is to two things - first, the military itself. Alas, we aren't as far from the days of spitting on the troops as I used to think we were.

But far more than that is the continued loss of their precious insulation from the real world. The Solomon Amendment forces academia to recognize that being a citizen involves not just rights, but responsibilities. It forces them to admit other people have legitimate, if different, points of view, and that they aren't all knuckle-dragging baby- killing ignorant gorillas. And it forces them to remember they are dependent on the good graces of the taxpayers for their grants, salaries, offices, research funds, and access to academic journals to publish their ideas. In short, it rudely reminds them they are not entitled to "free" money.

I do have to say that even before this ruling came down, this Law School allowed the military access, although they did have pretty hostile disclaimers. I don't know if they did before the Solomon Amendment was passed, though. But there is a large population of law students affiliated with the military here, and I hope UW continues - and in fact improves - its support of them.

My Hero Ted Kennedy

I'd just like to thank Senator Kennedy for his ridiculous attacks on Judge Alito, guaranteeing him his confirmation.

The Dems on the judiciary committee have now delayed the vote one week (as is their right, but something they apparently told Sen. Spectre they would not do). The only possible reason is to (a) buy more time to twist arms into supporting a filibuster, and/or (b) buy more time for liberal activist groups to smear Judge Alito. I honestly want to know - what do they seriously think they'll gain? Some say they're trying to delay it so President Bush can't take credit for the confirmation at the State of the Union Address. But all that would do is let Bush highlight their obstructionism. And the smear tactics have been going on for months now with the only result being an increase in Alito's public support. Is one week really going to make a difference?

These tactics make me think of a basketball team losing by 12 points in the final two minutes purposely fouling the winning team in the faint hope of them missing free throws and losing the rebound. Once in a blue moon, that might work. More often, it makes the losing team look desperate, confirming that they deserve to lose the game, and lets the winning team put up a whole bunch more points.

And I have to ask - whose idea was it to have Ted Kennedy there to grill Judge Alito on morality, respect for women, and/or empathy for the underprivileged?

Once again, the Democrats have displayed a tremendous talent for self destruction. Any assertions that they could regain Congress are, in light of their leadership, simply laughable.

Law Students for Alito

Issac Fong, a Federalist at Berkeley, has a Law Students for Alito blog that's well worth reading. He's tracking it all, and has information on what YOU can do to help ensure this man becomes Justice Alito.

The SCOTUS Panel

Check the comments below for my comments (whatever they're worth).