Republican Drive to Tilt Courts Against Climate Action Reaches a Crucial Moment – Coral Davenport – The New York Times


WASHINGTON — Within days, the conservative majority on the Supreme Court is expected to hand down a decision that could severely limit the federal government’s authority to reduce carbon dioxide from power plants — pollution that is dangerously heating the planet.

But it’s only a start.

The case, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming.”

David Lindsay:  The West Virginia coalition of Republicans won 6-3 at the Supreme Court.

However, Wikipedia adds some filler since then.

“Congress passed the Inflation Reduction Act of 2022 in August following the West Virginia decision. Among other actions, the bill was written towards several of the points raised in the majority decision and possibly overturns it. The law’s language addresses the major questions doctrine by explicitly granting EPA new authorities to regulate greenhouse gases. The law clarified that carbon dioxide from the combustion of fossil fuels is indeed one of several greenhouse gases to be treated as pollutants covered by the 1970 Clean Air Act, codifying Massachusetts. Some legal experts believe this would allow the EPA to set “outside the fence” regulations on existing power plants as to promote clean energy.[37][38] Other analysts say the law does not extend the EPA’s authority to alternative sources; Vermont Law School professor Patrick Parenteau said the Act does not include specific language towards generation shifting, leaving it as a potential major questions doctrine concern.[39]   “

Gail Collins and Bret Stephens | The Supreme Court’s Fighting Words – The New York Times

Gail Collins and 

Ms. Collins and Mr. Stephens are Opinion columnists. They converse every week.

“Bret Stephens: Hi, Gail. We’ve had two monumental Supreme Court decisions over the last week, on guns and abortion. Maybe it isn’t a fair question, but which of them scares, dismays, enrages or makes you want to bang your head against the wall more?

Gail Collins: I feel totally traumatized by both of them — even though, I admit, I was pretty much expecting everything that happened.

Bret: A line that’s making the rounds: It’s like knowing daylight saving time is coming and setting your clock back 50 years.”

Michele Goodwin | No, Justice Alito, Reproductive Justice Is in the Constitution – The New York Times

Ms. Goodwin is a chancellor’s professor of law at the University of California, Irvine, and author of “Policing The Womb: Invisible Women and the Criminalization of Motherhood.”

“Black women’s sexual subordination and forced pregnancies were foundational to slavery. If cotton was euphemistically king, Black women’s wealth-maximizing forced reproduction was queen.

Ending the forced sexual and reproductive servitude of Black girls and women was a critical part of the passage of the 13th and 14th Amendments. The overturning of Roe v. Wade reveals the Supreme Court’s neglectful reading of the amendments that abolished slavery and guaranteed all people equal protection under the law. It means the erasure of Black women from the Constitution.

Mandated, forced or compulsory pregnancy contravene enumerated rights in the Constitution, namely the 13th Amendment’s prohibition against involuntary servitude and protection of bodily autonomy, as well as the 14th Amendment’s defense of privacy and freedom.”

Peter Coy | The Politicization of the Supreme Court Is Eroding Its Legitimacy – The New York Times

    Opinion Writer

“Legitimacy is for losers,” a political scientist once said. It’s a profound concept. The winning side in a decision will gladly accept it without asking why. But the losing side — whether the decision is made by a basketball referee or the Supreme Court — will accept defeat only if they believe the decision was made fairly and by the book.

That’s why the politicization of the U.S. Supreme Court is so alarming. People on the losing end of Supreme Court decisions increasingly feel that justice is not being served. That’s a scary situation for the high court, and for American democracy in general.

“The Supreme Court has no power to enforce its decisions,” Daniel Epps, a law professor at Washington University in St. Louis, told me on Friday. “It doesn’t have an army. The only thing it has power to do is write PDFs and put them up on its website.”

Aaron Tang | Maine’s End Run Around the Supreme Court Is an Example for Other States – The New York Times

Mr. Tang is a law professor at the University of California, Davis, and a former law clerk to Justice Sonia Sotomayor.

“What a week so far for conservatives. On Tuesday, the Supreme Court struck down a Maine law that prohibited religious private schools from receiving taxpayer dollars. And on Thursday, it invalidated a New York State gun safety law limiting the public carry of firearms. The outcome in these cases was not surprising. The court has ruled in favor of religious litigants in an overwhelming number of cases, and the gun case’s outcome was clear from the oral argument before the justices in November.

What is surprising is how little the 6-to-3 decision in the Maine case, Carson v. Makin, will matter practically. And the reason offers a glimpse of hope for those who worry about a future dominated by the court’s conservative supermajority — including the many Americans troubled by the court’s decision in the gun case, New York State Rifle and Pistol Association v. Bruen.

Let’s start with the Carson case. Anticipating this week’s decision, Maine lawmakers enacted a crucial amendment to the state’s anti-discrimination law last year in order to counteract the expected ruling. The revised law forbids discrimination based on gender identity and sexual orientation, and it applies to every private school that chooses to accept public funds, without regard to religious affiliation.”

Distorted Reality – David Leonhardt – The New York Times

Here are a few facts about Ketanji Brown Jackson:

  • She frequently associates herself with a patriotic narrative of American history. “The first of my many blessings,” she told the Senate this week, “is the fact that I was born in this great nation.”

  • She is not an advocate of critical race theory or other progressive ideas about education. She has never taken a public position on hot-button school issues like whether young children should be taught about gender identity.

  • As a federal judge, she has a mainstream record, broadly typical of a Democratic nominee. She has often praised law enforcement, including her proud mention this week that her brother and two of her uncles worked as police officers.

You might not know any of this — you might well believe the opposite — if you spent the past few days listening to Republican senators or consuming many conservative media sources.

Jackson’s Supreme Court confirmation hearing has turned into a case study of how disconnected from reality large parts of the Republican ecosystem have become. I know that description sounds harsh and will bother some conservative readers. But I think the facts warrant it.

Jackson’s Supreme Court confirmation hearing has turned into a case study of how disconnected from reality large parts of the Republican ecosystem have become. I know that description sounds harsh and will bother some conservative readers. But I think the facts warrant it.

The debate over Jackson’s nomination has often had little to do with her. It has become an argument over a nominee who does not exist — one who does not respect America, is not truly religious, coddles child abusers and terrorists and has highly developed views about the importance of “woke” education. Yesterday, conservative activists used this portrayal to pressure moderate Democratic senators to vote against Jackson.

Conspiracy theories and unfair accusations have a long history in American politics, of course. But they have often remained on the margins. Today, distortions and falsehoods have moved to the center of politics.

Adrien Vermeule | Supreme Court Justices Have Forgotten What the Law Is For – The New York Times

“. . . What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.

The common good is no abstract idea; its absence is keenly felt today. In the past few decades, Americans have discovered that individuals and families cannot flourish if the whole community is fundamentally unhealthy, torn apart by conflict, lawlessness, poverty, pollution, sickness, and despair. Gated residences, private schools and Uber have not sufficed to immunize even the affluent against the consequences of living in a decaying, fractured and embittered polity. No family or civic association is an island, and the health of civic society and culture are themselves dependent upon the health of the constitutional order.”

David Lindsay: Fascinating guy, but where is he on Roe v Wade and women’s rights?

Jamelle Bouie | Let’s Bring the Supreme Court Back Down to Earth – The New York Times

Opinion Columnist

“A new vacancy on the Supreme Court means a new round of political theater over the beliefs and qualifications of the president’s eventual nominee.

But what does it mean for a Supreme Court justice to be “qualified”? The Constitution is silent on the question, and there’s not much to take from the framers either. To the extent that “qualified” means anything to most people, it’s that the nominee has ample experience on the bench, a standard in keeping with the idea that the court is the final rung on the meritocratic ladder for judges and other legal elites.

If significant experience as a judge is what it means to be qualified for the Supreme Court, however, then most iterations of the court have been patently unqualified. Of the 108 men (and two women) to have served on the court before 2007, according to the legal historian Henry J. Abraham in his history of Supreme Court appointments, 26 had 10 or more years of experience on any court, state or federal. Thirty-eight justices had no judicial experience, and the remaining 46 had only token experience adjudicating disputes from the bench.”

Great op-ed, and comments after.

Linda Greenhouse | Do We Have the Supreme Court We Deserve? – The New York Times

“When I left the daily Supreme Court beat back in 2008, the Week in Review, as The Times’s Sunday Review section was then called, invited me to offer some reflections on nearly 30 years of writing about the court, its cases and its members. The long essay ran under the headline “2,691 Decisions,” a number based on an editor’s calculation of how many decisions the court had issued during my time on the beat. I ended it with an observation about the “vital dialogue” between the court and the country. This was my conclusion:

“The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.”

A friend who recently came upon that article challenged me. “Do you still think we have the Supreme Court we deserve?” she asked.

Actually, sadly, my answer now is no.

It’s not that I think the country simply deserves a Supreme Court that happens to agree with me; I was finding plenty to disagree with back in 2008. Justice Samuel Alito had taken Justice Sandra Day O’Connor’s place in early 2006, wrenching the closely divided court to the right. In June 2007, Justice Stephen Breyer, during an impassioned oral dissent in a highly charged case on what measures public school systems can take to maintain racial diversity, lamented that “it is not often in the law that so few have so quickly changed so much.” “

Linda Greenhouse | What Sandra Day O’Connor Stood For on the Supreme Court – The New York Times

Ms. Greenhouse, a contributing Opinion writer, covered the Supreme Court for The Times from 1978 to 2008.

“This has been a month of sad remembrances — the 20th anniversary of Sept. 11, of course, and the anniversary last Saturday of the death of Justice Ruth Bader Ginsburg. An additional, less noted anniversary is an occasion not for sorrow but for wonder. Forty years ago this Saturday, on Sept. 25, 1981, Sandra Day O’Connor took her seat on the Supreme Court.

I use the word “wonder” because of how what once seemed remarkable is today a commonplace; of the 12 justices to join the court in the ensuing decades, four have been women, including three of the last five. Most people in the United States today were not yet born on that early fall afternoon when Sandra O’Connor took the oath of office and ended 191 years of an all-male Supreme Court.

The overflowing audience included President Ronald Reagan, whose nomination of a little-known judge on Arizona’s intermediate appellate court fulfilled a campaign promise — regarded by some as impetuous — to name the first woman to the court. For those of us who were old enough in 1981 to recognize the significance of the breakthrough, the sight of Justice O’Connor on a bench that included aging nominees of Presidents John F. Kennedy and Lyndon Johnson was electrifying.”

Lovely tribute. But many comments criticized it, as did, the most recommended one.

Daniel Fleisher
Baltimore7h ago

A respectful and moving tribute to Justice O’Connor. But there is a dark cloud over all of it. Ms. Greenhouse’s admiration is based largely on Justice O’Connor’s concern for the practical effects of her jurisprudence. But O’Connor ignored practical effects–as well as law–in deciding perhaps the most consequential case during her tenure: Bush v. Gore. In this infamous, unprincipled decision, O’Connor acted simply as a partisan– stopping the vote count in order to lift into power her preferred candidate. In her tribute, Ms. Greenhouse chose to omit this decision, despite the enormity of its corruption and consequence. Presumably, she omitted it because it was a poor fit with the tribute she was fashioning. But, for those of us who remember the Supreme Court’s soon-to-be disastrous intervention in the 2000 presidential election, Ms. Greenhouse’s omission is fatal.

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