Justice Scalia’s Last Important Vote

Justice Antonin Scalia died on Saturday. In 1987, when I was a second year law student, he visited Villanova Law School as the Supreme Court’s newest and youngest justice. He gave a lecture about the Constitution. His main point, as I recall, was that the structure of government under the Constitution is more important than the Bill of Rights as a safeguard of democracy. I was studying constitutional law that semester and was thrilled at the chance to listen to a Supreme Court justice. He even answered a question from me.

I appreciated his thoughts on that occasion, but as I watched him over the years since I frequently disagreed with him on important cases and I particularly disagreed with the harshness of the language he directed at his colleagues in some of them. These are professional and political differences, not personal ones. I did not know him personally. His family, friends, colleagues, and admirers are sad. I sympathize with them. He was a dedicated and passionate public servant at the highest level for many years. He was outspoken, influential, and interesting to watch and read. We note his passing with respect and dignity, but that does not mean that we cannot comment on and criticize his work as a jurist.

Justice Scalia saved one of his most important votes as a justice for almost last. On February 9, 2016, four days before he died, Justice Scalia voted with the majority on a request for a stay in five identical cases brought by a number of states and energy companies challenging the legality of the Environmental Protection Agency (EPA)’s Clean Power Plan (CPP).

The CPP is the Obama Administration’s regulatory initiative to curtail emissions of carbon dioxide, the primary driver of climate change. The EPA formally promulgated the CPP in October 2015. Right away the challengers filed a lawsuit in the federal circuit court of appeals for the District of Columbia. They asked the DC Circuit to declare the CPP illegal and to stay its effect while the case is pending. The circuit court set a date in June 2016 for oral argument on the merits of case and denied the request for a stay. The challengers appealed the denial of the stay to the Supreme Court. Most lawyers following the case thought the appeal of the stay request to the Supreme Court stood little chance of success, as the Court had never before stayed a federal regulation while considering a challenge to it.

To the surprise of all, a five-justice majority of the Court issued an order staying the CPP until the DC Circuit decides the case and the Supreme Court denies any request for an appeal to it or until it decides the case on the merits. As a practical matter, that means the five justices decided to stay the CPP until they got a chance to hear and rule on the ultimate legality of the CPP, which will not be until 2017 at the earliest.

A concerned citizen might ask why the majority decided to stay the CPP, and the answer is we don’t know, because the majority didn’t say why. The Court issued a one-page order that offers no explanation for the decision.

This brings us back to Justice Scalia, who was one of the five justices in the majority, along with Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. These are the five justices appointed by Republican presidents, also known as the conservative wing of the Court.

Justice Scalia was widely credited as the intellectual leader of the conservative wing who led the backlash against the supposed excesses of liberal justices like Chief Justice Earl Warren and Justice William Brennan. Justice Scalia held himself out as the very antithesis of an activist justice, one who deferred to the democratically elected branches of government. As he wrote in dissent in 2015 in Obergefell v. Hodges (the marriage equality case), “[a] system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

If that’s true, then it’s doubly true when the justices make an unprecedented decision on an important subject without offering a reason. The hallmark of accountability is explanation. Parents can make decisions for their children and offer no reason other than “because I say so.” Dictators can do that too. It doesn’t work in a democracy, and particularly not for an administrative body or a court. It’s called being “arbitrary and capricious” and it’s clear grounds for reversal.

But that’s what the five justices did last week, except that they cannot be reversed because there is no higher court. Their decision to stay the CPP is problematic, some might say appalling, from a legal policy perspective, particularly when we consider the background and importance of the CPP.

  • The CPP is the first serious effort by the EPA to reduce greenhouse gas emissions (GGEs) such as carbon dioxide. Leading scientific organizations like the National Academy of Sciences have repeatedly warned that the world faces catastrophic consequences unless GGEs are substantially reduced soon.
  • The Supreme Court itself recognized the problem of climate change in the 2007 decision of Massachusetts v. EPA, in which five justices (not including Justice Scalia) held that the EPA has the authority under the Clean Air Act to regulate carbon dioxide.
  • In response to the Supreme Court’s 2007 decision, the EPA began the rulemaking for the CPP. In 2009, the EPA determined that GGEs threaten Americans’ health and welfare by leading to long-lasting changes in our climate that can have a range of negative effects on human health and the environment. The federal appeals courts in Washington upheld that determination and the Supreme Court declined to hear the case.
  • In 2011, the Supreme Court by a six justice majority (including Justice Scalia) decided in American Electric Power Company, Inc. v. Connecticut that the grant of authority to the EPA to address climate change by regulating GGEs displaces federal common law of interstate nuisance and state tort law on the subject.

These decisions recognize the EPA’s clear legal authority for the CPP, which is not a radical approach to combatting climate change. It calls upon the states to develop and implement plans that ensure the power plants in their state achieve 30% carbon dioxide emission reductions between 2022 and 2030. The states are given great flexibility in developing and implementing plans.

The CPP requires each state to submit their final plan by September 6, 2016, or to submit an initial plan with a request for an extension by that date, in which case the date for submission of the final plan is extended to September 6, 2018. The stay order issued last week disrupts these deadlines.

Several states notably California have announced that they will go forward with their efforts to comply with the CPP despite the stay from the Supreme Court. But the challenger states (27 at last count) have been given a reprieve. The stay threatens their ability to comply with the CPP deadlines, including the ultimate 2030 deadline even if the Court eventually upholds the CPP.

In other words, the stay has major substantive implications. It also threatens the international climate change accord reached in Paris in December 2015, as it calls into question the United States’ ability to carry through on its pledge to reduce GGEs, which induced other nations (like China and India) to join the accord.

Climate change is an urgent problem that has been calling out for a solution for many years. It’s hard to fathom how five justices could have decided that putting the CPP on hold for at least a year was the right thing to do. Even more difficult to understand is how they could have thought that they had a proper basis in law to stay the CPP without any precedent or explanation. It’s impossible to reconcile the majority’s decision to stay the CPP with the concept of judicial deference to the other branches of government. Worse, the decision implies disagreement with the EPA on the urgency of the climate change problem. That puts the Court on the wrong side of science and history.

This year 2016 we will watch important political events: a presidential election and Senate hearings on a Supreme Court nominee. No doubt there will be much discussion about the proper role of the Supreme Court in our constitutional democracy. As we listen to and participate in this discussion, let’s be sure to remember and point out that we cannot afford a judicial philosophy that permitted five unelected lawyers to impose their will on the country and the world without so much as a word of explanation. That’s clearly not how our constitutional democracy should work.

 

– Stephen G. Harvey