Richard Lazarus

Justice Antonin Scalia, who died unexpectedly Feb. 13 while on vacation at a West Texas resort, authored nearly two dozen majority opinions and a dozen dissents in environmental law cases during his 30 years on the U.S. Supreme Court. ... Richard J. Lazarus, a professor at Harvard Law School, told Bloomberg BNA that Scalia “was probably environmental law’s greatest skeptic,” but not “because he was against environmentalism.” ... Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA that “you could largely predict where Scalia would come out on those cases. He was very consistent that the burden on the larger public to get standing was always going to be greater than for directly regulated entities.”

An op-ed by Richard Lazarus: Justice Antonin Scalia joined the bench 30 years ago, this coming September. From his first days on the bench on that first Monday of October to his final days just a few weeks ago, Scalia changed the Supreme Court and its rulings. But his influence was far more profound and transformative than the many significant individual rulings he authored and those that he joined. Justice Scalia did no less than change the nature of legal argument before the Court and opinion writing by the Court.

Harvard Law School affiliates remembered alumnus and Supreme Court Justice Antonin G. Scalia, who died Saturday at age 79, for his vibrant, fiery personality and his substantial contributions to United States law. “Justice Scalia will be remembered as one of the most influential jurists in American history,” Law School Dean Martha L. Minow wrote in a statement. ...  Law School professor Alan M. Dershowitz, who knew Scalia personally, often found himself squaring off against the justice. Dershowitz said. “I disagree with almost all of his opinions, but I found him to be a formidable intellectual adversary.”....Law professor Charles Fried, who has written extensively on Scalia’s judicial stances, wrote in an email, “I knew him in so many ways over so many years. I am very sad about this great man's death.”...Law professor Richard Lazarus penned an op-ed in the Harvard Law Record extolling Scalia’s contributions to the art of oral argument. In a Bloomberg View piece, columnist and Law professor Noah R. Feldman wrote, “Antonin Scalia will go down as one of the greatest justices in U.S. Supreme Court history -- and one of the worst.” Law Professor Laurence H. Tribe commented in Politico Magazine, “To say that Scalia will be missed is an understatement.”

Justice Antonin Scalia’s death will complicate the work of the Supreme Court’s eight remaining justices for the rest of the court’s term, probably change the outcomes of some major cases and, for the most part, amplify the power of its four-member liberal wing. ...“Justice Scalia’s sad and untimely death will cast a pall over the entire term and a shadow over the court as a whole at least until a successor is nominated and confirmed,” said Laurence H. Tribe, a law professor at Harvard. ...“No less than the viability of the historic climate change agreement reached in Paris may well be in peril,” said Richard J. Lazarus, a law professor at Harvard. “And without Justice Scalia’s vote, that stay would have been denied.”

The death of U.S. Supreme Court Justice Antonin Scalia on Saturday sets up a battle between the White House and the Senate over who will nominate a new associate justice—a battle over governing norms and constitutional imperatives, played out in the most powerful republic in the world. ...  As to the first, no legal expert I talked to thought the now-smaller Court was likely to annul its stay. “There is currently no reason to assume the Court will revisit the stay order,” said Richard Lazarus, an environmental-law professor at Harvard University and a veteran of oral arguments at the Court, in an email. “It is final as voted on by the full Court at the time and is not subject to revisiting any more than any other ruling by the Court before the Justice’s passing.”

America's bold effort to cut carbon-dioxide emissions from power plants is on hold. On February 9th the Supreme Court, divided five to four along partisan lines, putting the brakes on Barack Obama’s flagship environmental policy, pending a possible ruling this summer. The plan forms the core of America’s recent commitments to cut emissions, made at the UN climate talks in Paris...States, utilities and mining companies have declared the plan to be too much, too soon. The attorney-general of West Virginia, one of the states opposing it, said he was “thrilled” after the court issued its stay. Richard Lazarus, from Harvard Law School, calls the intervention “extraordinary”. Although compliance with the regulation is not required until 2022, the deadline for submitting first plans to cut back on emissions was supposed to be September.

The Supreme Court’s decision to delay implementation of President Obama’s Clean Power Plan has dealt a serious blow to American efforts to fight climate change, leaving an air of uncertainty—both in the U.S. and abroad with international partners—around a plan Obama once heralded as “the biggest, most important step” ever taken to combat global warming. ..“At least five of them think there’s a serious issue with the validity of the Clean Power Plan,” says Richard Lazarus, a professor of environmental law at Harvard Law School. “If the Court thought there was nothing to the claims, they wouldn’t have granted the stay.”

Two former Environmental Protection Agency administrators appointed by Republican presidents have joined litigation over the Clean Power Plan in support of the agency. William D. Ruckelshaus, the agency's first administrator, who was appointed by President Richard Nixon and later served under President Ronald Reagan as well, and William K. Reilly, who was appointed by President George H.W. Bush, filed a motion in the U.S. Court of Appeals for the District of Columbia Circuit Dec. 3 seeking to join litigation over the EPA's carbon dioxide emissions limits for existing power plants as amici curiae...Ruckelshaus and Reilly are represented by Harvard University law professor Richard Lazarus.

Two Republicans who headed the Environmental Protection Agency (EPA) are backing the Obama administration’s climate change rule for power plants as it faces a federal court challenge. William Ruckelshaus, who was the first EPA administrator under President Richard Nixon and later served in the same position under President Ronald Reagan; and William Reilly, who served under President George H.W. Bush, want to be able to file amicus briefs in the case. The two men support the climate rule, saying in October that “the rule is needed, and the courts we hope will recognize that it is on the right side of history.”...Ruckelshaus and Reilly are being represented by Jody Freeman and Richard Lazarus, two Harvard Law School professors who have written and fought in support of the climate rule.

Harvard Law School Professor Richard Lazarus joined via Skype to talk about Chief Justice John Robert’s approach to opinion writing assignments and other administrative tasks.

Chief Justice John G. Roberts Jr. is a stickler for evenly distributing the workload of the Supreme Court, but he plays favorites among his eight colleagues when assigning the court’s most important decisions. Not surprisingly, Roberts calls his own number more than anyone else’s and assigns the second-highest number to Justice Anthony M. Kennedy, the pivotal justice on the ideologically divided court, according to a new study by Harvard law professor Richard J. Laz­arus, published in the Harvard Law Review. On the other hand, Roberts has never assigned Justice Sonia Sotomayor the court’s opinion in a major case in her six terms on the court, Lazarus found, an omission that he wrote “could be a bit portentous.” In looking broadly at the chief justice’s 10 years on the job, Laz­arus found that Roberts hesitates in assigning big decisions to the court’s most conservative and liberal members — Antonin Scalia and Clarence Thomas on the right, and Sotomayor and Ruth Bader Ginsburg on the left.

When the chief justice is in the majority, he gets to decide who will write the Supreme Court’s opinion. This is, Justice Felix Frankfurter once wrote, “perhaps the most delicate judgment demanded of the chief justice.” Chief Justice John G. Roberts Jr. has approached the task with characteristic rigor. In one sense, a new study concluded, he is scrupulously fair: Every justice gets very close to the same number of majority opinions. In another sense, he plays favorites, doling out major assignments and unappealing ones with keen attention to strategy. Chief Justice Roberts finished his 10th term in June. In those years, he was in the majority 86 percent of the time, according to the study, which was prepared by Richard J. Lazarus, a law professor at Harvard, and published in The Harvard Law Review Forum...“One of the easiest ways to reduce the risk of the swing justice swinging the other way is to assign the opinion to that justice, thereby ensuring that the opinion is one he or she will be willing to join, even if the court’s holding may be far narrower as a result,” Professor Lazarus wrote.

Harvard Law School professor Richard J. Lazarus says environmental cases often are treated with disdain by U.S. Supreme Court justices. Convincing the court to review environmental cases is “really hard,” Lazarus said while speaking to the American Bar Association’s Section of Environment, Energy and Resources fall conference Oct. 30 in Chicago. Last term, the justices decided 66 cases on the merits, out of approximately 8,500 cert petitions submitted to the court—a little less than 1 percent—Lazarus said, noting the “steady, downward trend” of merits review...Your chances of Supreme Court review are even worse if you’re an environmental case because the justices don’t like them, Lazarus said. “Everyone in this room, we share something in common that the justices don’t share,” Lazarus told the ABA audience. “We like the Clean Air Act, we like the Clean Water Act, we like RCRA, we like CERCLA. It makes our hearts go pitter-patter. The justices don’t.”

Ten U.S. Supreme Court law clerks from last term have joined Jones Day as associates, the firm announced Monday, topping its record-breaking number of seven clerk hires last year...“Ten Supreme Court clerks from one term going to a single law firm is unquestionably a stunningly large number,” Harvard Law School professor Richard Lazarus told The National Law Journal. Lazarus, who has written extensively about modern Supreme Court practice, said “when the numbers get so high—in terms of the bonus itself and the numbers of hires going to one firm—it unavoidably raises concerns about what is being purchased and the meaning of public service.”

The Supreme Court announced on Monday that it would disclose after-the-fact changes to its opinions, a common practice that had garnered little attention until a law professor at Harvard wrote about it last year...“This is a welcome step by the court to correct a problem that has persisted for more than a century, and which was exacerbated in recent years by modern technology,” Professor [Richard] Lazarus said. “The court deserves praise for its willingness to make transparent its corrections of past mistakes in its slip opinions.” But slip opinions are early versions of the court’s rulings. It is not clear, Professor Lazarus said, whether the court would take additional steps later in the editing process, which can last five years before authoritative hardcover books are produced, to make all changes public.

The U.S. Supreme Court announced Monday a series of policy changes that respond to public complaints about secret changes to the justices’ decisions, hiring "line-standers" for high-profile oral arguments and "link rot" in the court’s rulings...The move appears to be a direct response to a 2014 Harvard Law review article on the "nonfinality" of court opinions. In the article, Harvard Law School professor Richard Lazarus revealed that changes, some of them substantial, were being made to already issued opinions without notice to the public. Lazarus is a longtime friend of Chief Justice John Roberts Jr. Lazarus on Monday called the new policy “certainly a very welcome step by the justices to correct a practice that had persisted for far too long...But Lazarus cautioned that the court's new policy "stops short of making transparent the changes made between the slip opinion and the final bound volume of the U.S. Reports. To address that problem, the court needs to make publicly available the changed pages that are used in publishing the final bound version of the court’s opinions."...The court also announced new procedures to confront "link rot," the phenomenon where web-based links that are included in court opinions disappear or become broken, making it difficult for scholars and others to recover materials that were pertinent to court decisions. A 2013 study by Harvard scholars including presidential candidate Lawrence Lessig found that 50 percent of links in Supreme Court opinions do not link to the originally cited information.

President Obama’s climate-change plan will face a fierce challenge in the courts this fall, when lawyers for at least 15 states join the coal and power industries to block the carbon-reducing rules before they take effect...But other experts in environmental law say the outcome is hard to predict. “EPA will not have smooth sailing,” said Harvard Law professor Richard Lazarus, noting the high court’s June ruling against another clean-air rule came as a “dose of cold water” for environmental advocates.

An op-ed by Jody Freeman and Richard Lazarus. After releasing the Clean Power Plan this week the Obama administration must shift from offense to defense. The plan, which set the first national limits on carbon pollution from existing coal- and natural gas-fired power plants, faces two significant risks: one legal, the other political. The administration must address them to achieve the plan’s ambitious goal of cutting carbon emissions 32% below 2005 levels in 2030.

The Supreme Court dealt a blow to the Obama administration's environmental plans, deciding that efforts to sharply limit hazardous power plant emissions must also consider their costs. In a 5-4 decision Monday, the justices said the Environmental Protection Agency needs to weigh the economic impact of proposed regulations — estimated at $9.6 billion annually — on power companies and their customers...The decision "overturns one of EPA's most important pollution control rules," said Harvard law professor Richard Lazarus, an expert on environmental law. "The good news is that EPA can likely go back and reissue the same rule, this time taking costs into account. The bad news is that this may take a long time to accomplish. The Obama administration will be hard-pressed to get the job done before it goes out of office."

How could constitutional scholar and Harvard Law School professor Laurence Tribe's involvement in last week's U.S. Court of Appeals for the District of Columbia Circuit hearing on the Clean Power Plan affect the future of the rule? During today's OnPoint, Richard Lazarus and Jody Freeman, professors at Harvard Law, explain why they believe the government came out ahead during last week's federal court hearing. They also rebut Tribe's arguments against the constitutionality of the Power Plan.