Legal Realism, Federalism, Standing and Greenhouse Gases

Update [2007-4-9 11:54:52 by Big Tent Democrat]: Jack Balkin makes similar points with much less verbiage.

Linda Greenhouse yesterday wrote with seeming mirth about Chief Justice John Robert's biting dissent in the EPA/Global Warming case. In particular, Greenhouse appeared to enjoy Justice Stevens' invocation of federalism as a basis for granting standing to the petitioners:

In the majority opinion, Justice John Paul Stevens found five votes for the conclusion that Massachusetts not only met all three tests but was also entitled to special deference for its claim to standing because of its status as a sovereign state. Invoking no modern precedent — because there was none — to support this new theory of states’ rights, Justice Stevens deftly turned the court’s federalism revolution, which he has long opposed, on its head and provoked an objection from the chief justice. States have “no special rights or status” when it comes to standing, Chief Justice Roberts said.

While this is all just another manifestation of legal realism from all of the Justices, I do think it has some interesting implications that go beyond this discrete issue. I'll discuss why I think so on the flip.

Any lawyer SHOULD tell you that standing is an utterly ad hoc area of the law. Any judge that wants to hear a case can find standing. Any judge that does not, can choose not to finding standing. I have no real solution for this problem of uncertainty in our "justice" system.

But I do think there is a larger truth that the Stevens-Roberts dispute on federalism and standing reveals - that the narrow view of standing the SCOTUS has taken since the rise of Rehnquist requires a different type of legislating by the Congress - one where its power to legislate must expressly provide methods of enforcement against the Executive Branch. Consider Chief Justice Roberts' dissent:

Global warming may be a "crisis," even "the most pressing environmental problem of our time." Pet. for Cert. 26, 22. Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change. Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government's alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse. This Court's standing jurisprudence simply recognizes that redress of grievances of the sort at issue here "is the function of Congress and the Chief Executive," not the federal courts. Lujan v. Defenders of Wildlife, 504 U. S. 555, 576 (1992).

Chief Justice Roberts here says that it is not the job of the Supreme Court to say what the law is. His defenders would says I forgot to add "absent specific concrete injury." That may be what he adds, but, I do not believe that is what he means. It is my view that standing is merely an ad hoc crutch to courts who want to avoid questions and cases. Disputes between the Congress and the President are clearly such questions.

But I do sympathize with Chief Justice Roberts' point - the standing jurisprudence does indeed allow for his position. In fact, it allows for just about any position any Justice wishes to take. It is why it is such bad law.

But he is right in this sense - Congress can expressly grant standing in such cases. Many may disagree with me on this. Here's why:

Article III, §2, of the Constitution limits the federal judicial power to the adjudication of "Cases" and "Controversies." "If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so." DaimlerChrysler Corp. v. Cuno, 547 U. S. ___, ___ (2006) (slip op., at 5). "Standing to sue is part of the common understanding of what it takes to make a justiciable case," Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 102 (1998), and has been described as "an essential and unchanging part of the case-or-controversy requirement of Article III," Defenders of Wildlife, supra, at 560.

"An essential and unchanging part of the case or controversy requirement[?]" Ha! That was Roberts quoting Scalia. So why should Congress bother? I think it would make it more difficult for the Roberts and Scalia's of the world to pretend they are not judicial activists, thwarting the will of the People. That's why.

But that is just another aspect of the game playing all sides do on "judicial philosophy." I've written on this disingenuousness before:

What is interesting about the discussion which arises on antitrust law issues is the unquestioned belief that the courts are to act with policy driven concerns in mind. And this comes from the Right most prevalently. Consider this from Judge Posner of the Seventh Circuit in a 1991 case:
The modern conception of the Sherman Act is of a statute that seeks to protect consumers from monopolistic practices rather than competitors from competitive practices.
The modern conception of a 1890 law? Doesn't seem very originalist to me. And here is a proclaimed originalist, unlike Posner, who only "admires" the originalism of Scalia and Bork.

There are two problems that a "conservative" legal philosophy has and causes. The first is related to the modern federal government. This passage from US v. Darby illustrates this:

The power of Congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed by the constitution.' Gibbons v. Ogden, supra, 9 Wheat. 196. That power can neither be enlarged nor diminished by the exercise or non-exercise of state power. Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra. Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use. Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, supra; Hoke v. United States, supra. Such regulation is not a forbidden invasion of state power merely because either its motive or its consequence is to restrict the use of articles of commerce within the states of destination and is not prohibited unless by other Constitutional provisions. It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States, 239 U.S. 510, 514 , 36 S.Ct. 190, 191; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 , 40 S.Ct. 106, 108; United States v. Carolene Products Co., 304 U.S. [312 U.S. 100, 115] 144, 147, 58 S.Ct. 778, 780; United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, decided December 16, 1940.

This expansive federal authority must be exercised by the Executive, and legislated by the Congress. But what happens when the Executive refuses or does so in a way not consistent with the Congress' enactments? Who decides?

The invention of the "political question" doctrine, again honored when convenient, see Bush v. Gore, is a real problem here. The Supreme Court must become, for better or worse, a Constitutional referee of disputes between the Congress and the President.

The Bushie argument has been, in essence, the Congress must take extreme measures to enforce its will - impeachment, defunding, etc. That certainly was not what the Funding Fathers had in mind when they wrote about the separation of powers. But "conservative" philosophy would lead us there. This is the work of "the unitary executive," states rights and "judicial restraint." But it is not just the philosophies, it is the cynical invocation or ignoring of these "principles" as political expediency requires. It leads to the building of unbearable structural tensions on our Constitutional system, which could lead to unforeseen constitutional changes.

This could be good or bad, but let's be clear, no one knows how it might turn out. It is a leap into the unknown - hardly a conservative position.

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    Roberts (5.00 / 1) (#1)
    by KD on Mon Apr 09, 2007 at 11:43:35 AM EST
    Supreme Court Justice Roberts is in the pocket of big coal, big oil, and other polluters. He can spin a vast number of arguments, but they'll all come around to helping industry avoid regulation in the end.

    This is (5.00 / 4) (#2)
    by Maryb2004 on Mon Apr 09, 2007 at 12:37:49 PM EST
    an excellent post.

    With the SCOTUS ruling season coming into full swing I hope you'll get back to doing more of this.

    Thanks (5.00 / 1) (#3)
    by Big Tent Democrat on Mon Apr 09, 2007 at 01:04:53 PM EST
    I have one on Iraq and standing in the hopper.

    Remember the great plan of the Iraq Supplemental?


    Congress already tried (5.00 / 2) (#4)
    by Categorically Imperative on Mon Apr 09, 2007 at 02:39:19 PM EST
    The law used to grant citizen standing to sue to enforce environmental legislation.  Trying it again isn't going to mean the SCOTUS has any more shame this time.

    Great post, but I disagree about standing doctrine being even remotely defensible as a matter of constitutional interpretation.  It's a joke...a "case" or "controversy" is whatever the law says it is.  If Congress wants to grant standing to any citizen, despite an absence of any particularized harm to said citizen, that should be enough for standing.  There's no other way to conceptualize what a "case" is.  The so-called "doctrine" of prudential standing, or whatever the Court is calling it these days, is nothing more than a dodge used to achieve a desired substantive outcome without having to put the Court's reasoning in print.  

    Roberts' Duke Law Review article defending Lujan was pure tripe and should have been exhibit A in filibustering him.  Expect one key focus of his tenure as CJ to be closing the courthouse doors to as many 'disfavored' litigants as possible.

    Wait for my next one (5.00 / 2) (#5)
    by Big Tent Democrat on Mon Apr 09, 2007 at 02:42:50 PM EST
    Looking forward to it n/t (5.00 / 1) (#6)
    by Categorically Imperative on Mon Apr 09, 2007 at 02:48:59 PM EST
    Seems like a silly issue to have a constitutionl.. (5.00 / 1) (#7)
    by Slado on Mon Apr 09, 2007 at 02:52:29 PM EST
    confrontation over since we all know deep down the theory if man made global warming isn't real.

    Heh (none / 0) (#8)
    by Big Tent Democrat on Mon Apr 09, 2007 at 03:32:21 PM EST
    They're kinda like ... (none / 0) (#10)
    by Sailor on Tue Apr 10, 2007 at 08:50:21 AM EST
    ... holocaust deniers except 10Mil+ haven't died yet.

    More than 2,500 scientists worldwide contributed to the report, relying on peer-reviewed studies to make their findings and subjecting them several times to outside review.

    The language in the report had to be approved unanimously by governments. Among scientists, changes had to be by consensus. In addition, every change of wording had to be approved by all scientists who wrote the affected section.
     "More than one-sixth of the world population live in glacier- or snowmelt-fed river basins and will be affected by decrease of water volume." And depending on how much fossil fuels are burned in the future, "262-983 million people are likely to move into the water-stressed category" by 2050.

    • Global warming could increase the number of hungry in 2080 by between 140 million and 1 billion, depending on how much greenhouse gas is emitted in coming decades.

    • "Overall, a two- to three-fold increase of population to be flooded is expected by 2080."

    • Malaria, diarrheal diseases, dengue fever, tick-borne diseases, heat-related deaths will all rise with global warming. But in the United Kingdom, the drop in cold-related deaths will be bigger than the increase in heatstroke-related deaths.

    • In eastern North America, depending on fossil-fuel emissions, smog will increase and there would be a 4.5 percent increase in smog-related deaths.

    • Because global warming will hurt the poor more, there will be more "social-equity" concerns and pressure for governments to do more.

    I still haven't seen a single climatologist deny it and/or say it's not manmade.


    Is that you Mr. Inhofe? (none / 0) (#9)
    by Joe Bob on Mon Apr 09, 2007 at 05:00:23 PM EST