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This article was updated on June 30 at 2:48 p.m. The Supreme Court on Thursday truncated the Environmental Protection Agency’s power to regulate greenhouse gases. The ruling may hamper President Joe Biden’s plan to fight climate change and could limit the authority of federal agencies across the ex
The Supreme Court on Thursday truncated the Environmental Protection Agency’s power to regulate greenhouse gases. The ruling may hamper President Joe Biden’s plan to fight climate change and could limit the authority of federal agencies across the executive branch. By a vote of 6-3, the court agreed with Republican-led states and coal companies that the U.S. Court of Appeals for the District of Columbia Circuit was wrong when it interpreted the Clean Air Act to give the EPA expansive power over carbon emissions. The decision, written by Chief Justice John Roberts, was handed down on the final opinion day of the 2021-22 term. [...] Justice Elena Kagan dissented, in an opinion joined by Justices Stephen Breyer and Sonia Sotomayor. She complained that there was no reason for the court to weigh in at this stage at all, because the Biden administration has announced that it plans to issue a new rule. The majority’s reasoning, she wrote, “rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it” in Section 7411. But that is exactly what Congress intended, Kagan suggested, because of the EPA’s expertise on environmental issues. Noting that the “stakes here are high,” Kagan lamented that Thursday’s ruling “prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. 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.”
“So I just want to say I’m actually a bear, and I’m not a lawyer,” pronounced Andrew Weissmann, counsel for petitioner Paulina, in a bear fi
“So I just want to say I’m actually a bear, and I’m not a lawyer,” pronounced Andrew Weissmann, counsel for petitioner Paulina, in a bear filter on Zoom (or, perhaps, pronounced a bear in an Andrew Weissmann filter). That’s how oral argument started Thursday night in the 35th mock trial presented by the Shakespeare Theatre Company, with Justice Stephen Breyer presiding. The source material for this trial, The Winter’s Tale, holds one of Shakespeare’s most famous stage directions (“Exit, pursued by a bear”) which, happily coinciding with the recent lawyer cat phenomenon, left no want of animal material for counsel and bench to poke fun. Perhaps Paulina was colluding with the bear, or perhaps King Leontes was in fact a bear in a man’s costume
I went to see if anyone had posted a link to an article about the challenge to the ban on affirming healthcare for trans kids in front of SCOTUS today. That was a mistake the SCOTUS tag is vile today. Anyway here's the link to SCOTUSblog's preview of that case.
The Supreme Court on Wednesday will hear a challenge to a Tennessee law that bans the use of puberty blockers and hormone therapy for transg
Presiding over the Corte Suprema di Cassazione on Monday night, Justice Stephen Breyer took the bench for his last case as a 16th century judge before his planned retirement this summer. The spring mock trial at the Shakespeare Theatre Company, “A Hero Defamed? Much Ado About Margaret,” brought befo
Though she was up against the governor’s daughter, Margaret managed to swing some high-profile representation. Second Gentleman Doug Emhoff took her case, pro bono, he said, because she was a woman unheard by justice. “I stand behind women — and Margaret, I have her back, too!” he told the room. Emhoff’s argument was simple: His client, widely known as “Good Margaret,” was a credible, working-class woman who simply got used in a deceitful man’s scheme. “She was just an unwitting pawn of the real villain, Don Jr. — I mean, Don John,” he said.
Nearly six weeks after the Supreme Court heard oral arguments in two cases challenging a Texas law that bans almost all abortions in the sta
Nearly six weeks after the Supreme Court heard oral arguments in two cases challenging a Texas law that bans almost all abortions in the state, the justices on Friday limited – but did not fully eliminate – the ability of abortion providers to continue their challenge in the lower courts. The court ruled that the providers’ lawsuit can go forward against a group of state medical licensing officials, but not against the state-court judges and clerks whom the providers had also tried to sue.
The Texas law, known as S.B. 8, remains in effect. The ruling in the providers’ case, Whole Woman’s Health v. Jackson, allows the providers to return to the lower courts and seek an injunction against the licensing officials, but it’s not clear how much relief that could provide from a law that intentionally relies on private citizens for enforcement. The justices also declined to weigh in on a separate challenge to the Texas law brought by the Biden administration, and they denied the administration’s request to put the law on hold. [...]
Chief Justice John Roberts filed an opinion that was joined by the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Roberts agreed that the providers’ suit should be allowed to go forward against the licensing officials, but he would have allowed the rest of their suit to proceed as well. He emphasized that S.B. 8 “has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.” And because of the “ongoing chilling effect of the state law,” Roberts opined, the district court “should resolve this litigation and enter appropriate relief without delay.”
Roberts then addressed the impact of S.B. 8 more broadly, observing that its “clear purpose and actual effect” “has been to nullify this Court’s rulings.” If state legislatures can pass laws to undo the rights created by the federal courts, Roberts stressed, “the constitution itself becomes a solemn mockery.” “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts concluded.
Sotomayor also filed her own opinion, joined by Breyer and Kagan, in which she emphasized that “[f]or nearly three months, the Texas legislature has substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body.” The Supreme Court, she wrote, “should have put an end to this madness months ago, before S. B. 8 first went into effect,” but it did not do so then or now. Like Roberts, Sotomayor joined the portion of the court’s decision allowing the providers’ lawsuit against the licensing officials to go forward, but she explained that she dissented from “the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review.” By precluding lawsuits against state officials, including the state attorney general, Sotomayor suggested, “the Court effectively invites other States to refine S.B. 8’s model for nullifying federal rights.”
This article was updated on Dec. 1 at 5:15 p.m. It has been nearly 30 years since the Supreme Court’s decision in Planned Parenthood v. Case
It has been nearly 30 years since the Supreme Court’s decision in Planned Parenthood v. Casey, which reaffirmed the constitutional right to abortion that the court first recognized in Roe v. Wade. Only one justice who participated in Casey is still on the court now: Clarence Thomas, who joined a dissent in Casey arguing that “Roe was wrongly decided, and that it can and should be overruled.” After nearly two hours of oral argument on Wednesday in Dobbs v. Jackson Women’s Health Organization, Thomas and the other members of the court’s six-justice conservative majority seemed poised to uphold a Mississippi law that bans almost all abortions after the 15th week of pregnancy. That decision would further curtail the right to abortion and undermine a key component of Roe and Casey. But the justices were once again deeply divided over whether to formally overturn those precedents.
Enacted by the Mississippi legislature in 2018, the law – known as the Gestational Age Act – has never gone into effect. Both a federal district court and the conservative U.S. Court of Appeals for the 5th Circuit blocked the law, explaining that Roe and Casey bar states from banning abortions before fetal viability – the point around 24 weeks of pregnancy when the fetus can survive outside the womb. Mississippi asked the justices to weigh in and, after the court agreed to take up the case, the state began urging the court to overturn those landmark decisions.
Arguing for the state on Wednesday, Mississippi Solicitor General Scott Stewart told the justices that Roe and Casey “haunt our country,” have “poisoned the law,” and have “choked off compromise.” “Abortion is a hard issue,” he said, and it is a question that should be left up to the people to decide.
At least three justices – Thomas and Justices Samuel Alito and Brett Kavanaugh – appeared inclined to agree with Stewart and overrule Roe and Casey outright. Kavanaugh said that the Constitution does not directly address abortion and that the issue should instead be left to the democratic process. The court, he suggested, should remain “scrupulously neutral on the question of abortion — neither pro-choice nor pro-life.”
Kavanaugh later set forth a list of celebrated cases in which the court overruled prior decisions or announced new constitutional law. The cases he cited included Brown v. Board of Education, which outlawed racial segregation in public schools, Baker v. Carr, which helped enshrine the principle of “one person, one vote,” and Obergefell v. Hodges, which recognized the right to same-sex marriage. Describing those and other rulings as some of the “most consequential and important in the court’s history,” Kavanaugh said that if the court had simply adhered to its precedent, the United States “would be a much different place.” If we think that Roe and Casey are seriously wrong, he asked, why isn’t the correct answer to overturn them and “return to a position of neutrality?”
Alito pressed a similar point with U.S. Solicitor General Elizabeth Prelogar, who argued on behalf of the United States as a “friend of the court” supporting Jackson Women’s Health Organization, the only abortion clinic in Mississippi. Alito asked Prelogar whether the court’s infamous 1896 decision in Plessy v. Ferguson, holding that racial segregation laws did not violate the Constitution as long as “separate but equal” facilities were available, could have been overruled one year after it was handed down. When Prelogar agreed that it should have been, Alito seized on the concession. That means, he stressed, there are circumstances in which an “egregiously wrong” decision can be overruled even if the facts on the ground have not changed.
The court’s three liberal justices – Stephen Breyer, Sonia Sotomayor, and Elena Kagan – emphasized the importance of stare decisis, the principle that courts should adhere to prior precedent except under limited and extraordinary conditions. In particular, they stressed that overruling Roe and Casey would undermine the court’s legitimacy by creating the sense that the meaning of the Constitution hinges on the court’s membership at any particular moment in time. Sotomayor made the point most explicitly, noting that sponsors of the Mississippi ban had drafted the bill in response to changes in the Supreme Court’s membership.
“Will this institution survive the stench that this creates in the public perception – that the Constitution and its reading are just political acts?” Sotomayor asked. “I don’t see how it is possible.”
Breyer and Kagan echoed Sotomayor’s sentiments, although in slightly less stark terms. Breyer cited Casey itself, which said that overruling prior precedent in response to social or political pressure would “subvert” the court’s legitimacy. And Kagan emphasized the importance of stare decisis to prevent people from thinking that the Supreme Court is a political institution.
Kagan also addressed Roe and Casey head-on. Overturning those rulings, she said, would require a “strong justification” that, in her view, simply doesn’t exist. “Not much has changed” in the nearly 50 years since Roe and the 30 years since Casey, except that there have been numerous decisions reaffirming Roe and Casey, along with decades of reliance by women in the United States on those decisions, Kagan said.
"Supreme speed: The court puts abortion on the rocket docket" from Mary Ziegler on SCOTUSblog
Last week, the court took up two challenges to S.B. 8. One, brought by abortion providers, asked the justices to weigh in on “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to private citizens.
The court also granted a separate petition from the Justice Department. The United States, which until now had never brought a challenge to a state abortion restriction, argued that S.B. 8 interferes with its sovereign interest in ensuring that states recognize federal constitutional rights. DOJ also argued that the law raises preemption concerns by threatening the work of federal agencies, employees, and contractors who might offer abortion services.
In addition to granting the providers’ petition, the court will address whether the United States may sue the state of Texas, “state officials,” and “private parties” to “prohibit S.B. 8 from being enforced.” And rather than sitting on its hands, the court set a breakneck pace. It ordered an accelerated briefing schedule and set a date for oral arguments in both cases just 10 days from when the court agreed to hear them — a near record reminiscent only of the court’s speed in resolving the 2000 presidential election in Bush v. Gore.
Tea-leaf readers will find the court’s actions difficult to parse. The court again let S.B. 8 remain in effect. If the justices believe this law is unconstitutional, letting it linger seems strange. For many, the effects of S.B. 8 will be irreversible — for pregnant women seeking abortions and for clinics that will struggle to reopen. But the court is clearly in a hurry, which seems strange if the justices see nothing concerning about S.B. 8’s scheme. And in contrast to the previous 5-4 split, this time only Justice Sonia Sotomayor dissented from the court’s willingness to let the law remain in force. It seems unlikely that Roberts, Justice Stephen Breyer, and Justice Elena Kagan are any more at peace with the S.B. 8 scheme now than they were in early September. Perhaps they remained silent because they are confident that the law will not be in effect much longer.
It is not even clear whether the court will address the core substantive question: whether this court believes a six-week abortion ban is unconstitutional — and, by implication, whether Roe v. Wade and Planned Parenthood v. Casey are still good law. The grant in the Justice Department case is vague enough that it would allow consideration of the merits. The providers’ petition — which asks whether a state “can insulate from federal court review a law that prohibits exercise of a constitutional right” — builds in the question of whether S.B. 8 violates a constitutional right. On the other hand, the court did not take up Texas’ suggestion in the Justice Department’s case to explicitly reconsider Roe and Casey. Most likely then, the court will resolve only procedural questions about S.B. 8 and will do so quickly — perhaps before the court even hears oral argument on the constitutionality of Mississippi’s 15-week abortion ban in early December.
What seems clear is that the justices are taking S.B. 8 seriously now. Respect for the gravity of the issue had long been the hallmark of the court’s abortion jurisprudence, which recognized the dignity of life in the womb and the importance of pregnant women’s interests in equality and autonomy. In the court’s response to S.B. 8, that respect was nowhere to be found. The court’s indifference was even more breathtaking because of what S.B. 8 represents — other states could easily use a similar scheme to frustrate the exercise of everything from the right to bear arms to religious liberty.
The S.B. 8 litigation has damaged the court. Aside from polls showing the court’s reputation in freefall, the justices themselves have seemed unusually defensive. In the past month and a half, several have taken to the microphone to insist that they are not, in the words of Justice Amy Coney Barrett, “partisan hacks.”
Many dismissed the justices’ promises to be above politics, and with reason. In its first iteration at the high court, the S.B. 8 litigation suggested not only that politics influenced the outcome but that the justices treated abortion, an issue of great concern to many Americans, with a mixture of contempt and nonchalance. The court’s rocket-docket response to last week’s developments might change the narrative. It was clear for decades that Americans on either side of the abortion issue treated the fate of Roe as a matter of grave concern. Now, it seems, the Supreme Court may once again agree.
