Richard Lazarus

Justice Brett M. Kavanaugh on Wednesday corrected an error in an opinion issued as part of a Supreme Court ruling that barred Wisconsin from counting mail-in ballots that arrive after Election Day. Though not unheard-of, such revisions are rare, experts said, adding that Justice Kavanaugh’s change highlighted the court’s fast pace in handling recent challenges to voting rules. In the opinion, which was issued on Monday and alarmed Democrats worried about mail ballots being counted, Justice Kavanaugh wrote that while some states had changed their rules around voting in response to the pandemic, others had not. “States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots,” he wrote in his original concurring opinion, which was attached to the 5-to-3 ruling against the deadline extension in Wisconsin. The decision, issued just over a week before the presidential election, immediately drew intense scrutiny, and Justice Kavanaugh’s opinion prompted a complaint from Vermont’s secretary of state, Jim Condos. He pointed out that the state had, in fact, changed its rules to accommodate voters worried about showing up to polling stations during the pandemic...The Supreme Court began noting corrections and changes in opinions following a 2014 study that showed how, for years and without public notice, it had been altering its decisions long after they were issued, said Richard Lazarus, a law professor at Harvard University and the study’s author. During the 2019-20 session, the court noted it had changed errors or typos in written decisions about half a dozen times, he said. The court typically issues several dozen decisions each term. In this case, Professor Lazarus said, Justice Kavanaugh’s error was troubling because it revealed the rapid-fire pace with which the court, days before a presidential election, is making decisions that have enormous implications for the country. “The mistake he made is not of an earth-shattering, catastrophic nature but it does underscore the risk of writing quickly, not writing more deliberately and not taking time,” he said...When the justices do not have time to send opinions back and forth to one another and deliberate together, “they’re more likely to make mistakes,” Professor Lazarus said.

Supreme Court Justice and liberal icon Ruth Bader Ginsburg, who recently passed away at the age of 87, was best known for championing women’s rights. But she also leaves behind a remarkable environmental legacy. Harvard Law Professor Richard Lazarus, author of “The Rule of Five: Making Climate History at the Supreme Court,” believes the “classic example” of Ginsburg’s contribution to environmental jurisprudence was the 2007 case Massachusetts v. EPA, which is widely considered the most important environmental case ever decided by the US Supreme Court. This was the case in which the court established that EPA had authority to regulate greenhouse gases under the Clean Air Act, an idea that EPA itself had rejected. No less importantly, according to Lazarus, the case established that a plaintiff who alleged climate injury had the right to bring a case in federal court — “a hugely significant decision in its own right,” according to Lazarus. In several other cases, Ginsburg not only cast the decisive note, she wrote the opinion for the court, which Lazarus says was even more notable. Of the cases for which Ginsburg wrote the opinion for the majority, he adds, the most significant was Friends of the Earth v. Laidlaw. In this case, a group of citizens brought a lawsuit under the Clean Water Act alleging hundreds of violations of mercury emissions rules by the Laidlaw industrial facility in the area around South Carolina's North Tyger River. The Court of Appeals had held that the environmentalists lacked the requisite injury to bring the lawsuit, but the Supreme Court reversed the previous ruling. “Justice Ginsburg wrote a tour de force in that opinion,” Lazarus says. Her opinion not only established that these particular environmental plaintiffs had standing to bring their particular Clean Water Act suit.

A short-handed Supreme Court — driven from its courtroom by the pandemic, grieving over the loss of a colleague and awaiting the outcome of a divisive confirmation battle — will return to the virtual bench on Monday to start a term that will present Chief Justice John G. Roberts Jr. with a daunting test. “The chief’s leadership of the court, which just a few weeks ago appeared to be at its zenith, is now in peril,” said Richard J. Lazarus, a law professor at Harvard who has taught courses on the Supreme Court with Chief Justice Roberts. “An addition of yet another very conservative justice could quickly eliminate the chief’s ability to steer the court toward moderation.” The court will again hear arguments by telephone, starting with a timely case on the role of partisanship in judging, a subject that will also figure in Senate hearings on the Supreme Court nomination of Judge Amy Coney Barrett, which are scheduled to start a week from Monday. President Trump and Senate Republicans have been working hard to speed her path to the seat left vacant by the death last month of Justice Ruth Bader Ginsburg...Professor Lazarus said the court’s last term had reassured the public that “there was some truth to the chief justice’s admonition that the justices, while on balance very conservative, were not political partisans.” “All that hard-earned good will may soon be in tatters because of how President Trump has responded to Justice Ginsburg’s passing,” he added. “No matter how hard the chief and his colleagues try to stay above the political fray, it is a battle they cannot win when the president treats his nominees to the court as political loyalists.”

Amy Coney Barrett's likely ascension to the Supreme Court would affect climate policy beyond shoving the court rightward in the abstract. Why it matters: If Joe Biden wins the presidential election, his regulations and potential new climate laws would face litigation that could reach the high court. If Trump wins, ongoing cases over his dismantling of Obama-era policies could also reach SCOTUS. Whoever wins, a court with a 6-3 conservative majority will issue rulings that undoubtedly have ripple effects...Several analysts point to Barrett's writings that suggest support for "non-delegation doctrine," a legal theory that massively restricts how much power Congress can hand off to executive agencies. A related area: She could take a narrow view of the "Chevron deference," or the idea agencies deserve running room when statutes are vague or silent on a topic. Both matter when it comes to using the Clean Air Act to tackle global warming, because the 50-year-old law does not directly address the topic...Axios also asked Harvard Law School's Richard Lazarus about whether the more conservative court might upend Massachusetts v. EPA: "While the Court sometimes overrules it constitutional rulings, it almost never overrules its rulings on the meaning of federal statutes. I don’t think they would do it here."

Romaine Bostick & Taylor Riggs bring you the latest news and analysis leading up to the final minutes and seconds before the closing bell on Wall Street and tackle the SCOTUS impact on the Affordable Care Act, the delayed TikTok ban and oil's lackluster demand Guests Today: Meb Farber of Cambria Investment Management, Jonathan Gruber of MIT, David Conrod of FocusPoint, Jose Antonio Vargas of Define American, Chris Davis of Davis Advisors, Jason Katz of UBS, Richard Lazarus of Harvard Law School.

President Trump announced his nomination over the weekend of conservative Judge Amy Coney Barrett as a replacement for Supreme Court Justice Ruth Bader Ginsburg, who died Sept. 18. If Barrett is confirmed by the Republican majority in the Senate, before or after the November election, Trump will have managed to seat three right-wing justices on the country’s highest court and cement an ironclad 6-3 conservative hegemony for a generation to come. That may thrill Trump’s base and the conservative legal movement that has seen the Trump administration fill numerous federal judicial positions with its ideological allies. But Trump’s impact on the Supreme Court has also stirred growing alarm and anger. The president’s critics and opponents are furious over the naked hypocrisy of many of the same Republican senators who blocked President Barack Obama’s nominee in 2016 on grounds that such a weighty decision should not proceed in the middle of an election year. Moreover, Trump’s critics see his latest move as part of a broader autocratic power play. For months, the president has openly called into question the legitimacy of the upcoming election, ahead of which polls show him trailing by a significant margin nationally. A recent article by the Atlantic’s Barton Gellman outlined the all-too-real, looming set of constitutional crises that could follow, should Trump attempt to remain office or question the credibility of the vote. Key to such an attempt would be both Trump’s considerable executive powers and the conservative majority in the Supreme Court, which Trump has already admitted may be crucial to maintaining his place in the White House. It is difficult for the public to see the court as politically neutral “when a primary reason being given in favor of an expedited Senate confirmation hearing is … so the new justice can be there in time to vote in a way that will ensure the reelection of the president who just nominated them,” Richard J. Lazarus, a Harvard University law professor, told The Washington Post’s Robert Barnes.

An article by Richard Lazarus: The center of gravity of Justice Ruth Bader Ginsburg’s fame is justifiably focused on her pioneering work both as a young attorney and later as a justice for gender equality. Ginsburg’s own career embodied the women’s liberation movement and she clearly inspired generations of women as well as men to follow her example. What is less appreciated is the significant role that Justice Ginsburg played in environmental law on the high court, and how that record, in turn, reveals what made her such a great justice. Ginsburg came to the court in 1993 with no particular reputation on environmental issues. She had never practiced environmental law as an attorney and while serving as a judge on the U.S. Court of Appeals for the D.C. Circuit, she displayed no particular affinity toward environmental protection. If anything, then-Judge Ginsburg enjoyed a straight-shooter, pro-business reputation. Business community support of her Supreme Court nomination partly explains why Ginsburg was so easily confirmed by the Senate, 96-3, notwithstanding her obvious liberal views on otherwise potentially controversial social issues such as abortion rights. Once on the court, however, Ginsburg quickly became an important vote in environmental cases. What is most telling about her environmental law record, however, is its underscoring of both her integrity and her extraordinary skills as a jurist. Most simply put, although Justice Ginsburg’s fame is understandably rooted in her championing gender equality, the justice’s greatest contributions were rooted not in her ideology but in her skills as one of the most talented lawyers ever to serve on the court. Environmental advocates appearing before Ginsburg knew the justice was never a vote they could assume. Her vote always had to be earned. And the only way to earn that vote would be the force and persuasiveness of their legal arguments. The justice’s vote would not be decided by whatever sympathy she might privately harbor for the environmental protection policies they were promoting. Ginsburg was a progressive liberal, to be sure, but she was first and foremost an outstanding lawyer who applied her extraordinarily analytic skills with rigor and precision to the legal issues before the court.

How do you tell the story of an institution as enigmatic as the United States Supreme Court? On Sunday evening, Ruth Marcus, Adam Cohen and Richard Lazarus, three Harvard Law School graduates and authors of recent nonfiction works about the high court, set out to answer this question. Moderated by reporter Dahlia Lithwick, the panel of authors talked all things Supreme Court, from its structure to its most recent rulings, in a debate-style panel as part of the latest event in the 2020 Martha’s Vineyard Author Series. Opening the event with a bang, Ms. Lithwick posed the panelists with a polarizing question that set the tone for the rest of the discussion—whether they see the court as a political entity or purely a legal one...Drawing on his time representing environmental groups and governments in 40 Supreme Court cases, Mr. Lazarus said that to him, the court is a legal institution, stationed above politics. “When you have all the top political commentators, left and right, and both of them want to propel just the story [of a political court] it’s very hard for a second story to ever have any value to people,” said Mr. Lazarus...Mr. Lazarus on the other hand, stressed the importance that good lawyers with strong arguments play in the court’s rulings. But Ms. Marcus pushed back, citing the limits of lawyering under the current President. Keeping up a brisk pace, the scholars touched on a wide range of topics posed by viewers, like the impact of the Presidency on the court and whether or not the court should adopt structural reforms, like adding additional justices or instating term limits.

If Democrat Joe Biden defeats President Trump this November, his EPA will have a blank slate for writing climate rules. Because the Trump administration spent 3 ½ years demolishing its predecessor's Climate Action Plan, Biden's team would have an opening to update rules for carbon, methane and hydrofluorocarbons that would exceed their Obama-era counterparts or be more tailored to the political, judicial and economic realities of the 2020s. To be sure, a departing Trump EPA would leave finalized rules for power plant carbon, vehicle fuel economy, and oil and gas development, among other things, but most of those regulations haven't faced court reviews, allowing an incoming administration to ask that they be returned to the agency. That request — if granted — would clear the path for a Biden EPA to write new rules to go with the former vice president's promise of rejoining the Paris Agreement and the global effort to contain global warming...Meanwhile, the Trump administration has succeeded in moving the courts to the right, up to and including the Supreme Court. Justice Anthony Kennedy, the swing vote who retired from the court two years ago, usually sided with the court's liberal members on environmental cases like Massachusetts v. EPA, which established that EPA has the authority and obligation to address climate change under the Clean Air Act. The two justices Trump has nominated don't have that reputation...Richard Lazarus, a Harvard Law School professor and author of "The Rule of Five," which chronicles Massachusetts vs. EPA, said the agency under Biden would be aggressive. But he agreed that a conservative Supreme Court would be a barrier. "They will try to do more on power plants under a less ambitious legal theory," he predicted, adding that that would probably mean on-site emissions reductions.

The Supreme Court closed a pivotal annual term last week bearing the unmistakable imprint of Chief Justice John Roberts, who embraced the role of institutionalist as he sought to keep the court above nation’s intense partisanship during a time of national upheaval. Over the course of 55 cases decided this year—involving such politically sensitive issues as access to President Trump’s financial documents, gay rights, workplace discrimination and religious exemptions from providing contraceptive coverage—the chief justice was in the majority in all but two decisions...Taken together, the court’s output reflected the overarching message Chief Justice Roberts has sought to deliver since taking the helm in 2005: The judiciary stands apart from the partisanship that consumes its coequal branches of government, Congress and the presidency. “He believes very strongly that people should not look at the court and see Republicans and Democrats, that they not see judges as mere partisans,” said Harvard law professor Richard Lazarus, a longtime friend of the chief justice. “It’s an uphill battle, both against the outside forces, and sometimes within the court itself.” Mr. Lazarus says that goal plays a part in the votes the chief justice casts. In 2016, for instance, he dissented from a 5-4 decision invalidating a Texas law imposing burdensome requirements on abortion providers. But last month, he cast the deciding vote to strike down a similar Louisiana measure, writing that he felt bound to follow the precedent despite his disagreement...When possible, Chief Justice Roberts “doesn’t want 5-to-4. He wants to see 6-to-3 or 7-to-2,” said Mr. Lazarus, whose own recent book on the court is titled “The Rule of Five.”

In a series of stunning decisions over the past two weeks, Chief Justice John G. Roberts Jr. has voted to expand L.G.B.T.Q. rights, protect the young immigrants known as Dreamers and strike down a Louisiana abortion law. In all three decisions, he voted with the court’s four-member liberal wing. On Tuesday, he joined his usual conservative allies in a 5-to-4 ruling that bolstered religious schools. The decisions may be hard to reconcile as a matter of brute politics. But they underscored the larger truth about Chief Justice Roberts: 15 years into his tenure, he now wields a level of influence that has sent experts hunting for historical comparisons...Richard J. Lazarus, a law professor at Harvard, said Monday’s abortion decision vindicated Chief Justice Roberts’s statements. “The chief is sending a broader message to both parties, and this time in this case it is the Republicans who take the hit,” Professor Lazarus said. “But the message would be the same if it were the Democrats and their favored position had lost.” The message was this, Professor Lazarus said: “You cannot expect us to behave like partisan legislators.” The abortion case concerned a Louisiana law that was essentially identical to one from Texas that the court had struck down just four years ago, before Mr. Trump appointed two new justices. In dissent in 2016, Chief Justice Roberts had voted to uphold the Texas law. Professor Lazarus said he suspected the chief justice was offended by the idea that a change in the composition of the court should warrant a different outcome in what was, at bottom, the identical case.

Every Supreme Court decision seems to confirm Chief Justice John G. Roberts Jr.’s pivotal role at the center of the court, and Monday’s ruling on abortion showed that restrictions on a woman’s right to the procedure for now will go only as far as the chief justice allows. In a remarkable stretch of decisions over the past two weeks, Roberts has dismayed conservatives and the Trump administration by finding that federal anti-discrimination law protects gay, bisexual and transgender workers and stopping the president from ending the federal program that protects undocumented immigrants brought here as children...Roberts’s admirers speculate he was turned off by the attempt to have the court’s 2016 decision overturned because the court’s membership had changed with Trump’s two appointments. Too soon, said Richard Lazarus, a Harvard law professor who has known Roberts since law school days and who has taught summer courses with the chief justice. “The chief’s clear message is that is not how justices do their work,” Lazarus said in an email. “It is a shot across the bow at presidential candidates who campaign with lists of nominees based on the assumption that, if confirmed, they will of course necessarily vote based on the preferences of the majority who supported that candidate.”

Twice this week, the Supreme Court thrilled liberals and infuriated conservatives with its decisions, putting the spotlight once again on the man in the center chair, Chief Justice John Roberts. NPR's legal affairs correspondent Nina Totenberg reports. There is much more to come from the court in the coming weeks, but Chief Justice Roberts is clearly putting his stamp on the term so far. He didn't write the court's 6-to-3 opinion on LGBT employment rights, but he joined it and almost certainly assigned the opinion to fellow conservative Neil Gorsuch. Two days later, Roberts wrote the court's opinion blocking the Trump administration's attempt to revoke the Obama-era program protecting the so-called DREAMers from deportation. Senate Democratic leader Chuck Schumer, who voted against Roberts' confirmation, yesterday choked up on the Senate floor...Harvard law professor Richard Lazarus, who's known Roberts for decades, says that early in Trump's tenure, the chief justice ultimately gave the administration a break in the travel ban cases, barring travelers from some mainly Muslim countries. But since then, Trump has put the courts to a constant stress test. And as Lazarus sees the DACA ruling: "I think the central message here is the law applies to everybody, and that includes the president of the United States. And I'm not going to give you any breaks here."

The Supreme Court has extended a life-support line to some 650,000 so-called "Dreamers" on Thursday, allowing them to remain safe from deportation. ... TOTENBERG: At the end of the day, of course, the man of the hour is Chief Justice Roberts. Amid a politicized and polarized society, he repeatedly tries to portray the court as apolitical. He sees the growth of organizations on the hard right, like the Judicial Crisis Network, and on the hard left, like Demand Justice, each trying to stack the court with like-minded justices or to pack the court by expanding the number of justices. Harvard law professor Richard Lazarus has known the chief justice for decades. RICHARD LAZARUS: What these decisions this week underscore is we have a chief justice who is, plainly, working hard to try to demonstrate to the American people that the court, unlike the other two branches, is doing its job. He wants the American people to believe there's a thing called law, and a justice's job is to apply it.

The Trump administration, in twin actions to curb environmental regulations, moved on Thursday to temporarily speed the construction of energy projects and to permanently weaken federal authority to issue stringent clean air and climate change rules. President Trump signed an executive order that calls on agencies to waive required environmental reviews of infrastructure projects to be built during the pandemic-driven economic crisis. At the same time, the Environmental Protection Agency has proposed a new rule that changes the way the agency uses cost-benefit analyses to enact Clean Air Act regulations, effectively limiting the strength of future air pollution controls...Environmental activists and lawyers questioned the legality of the move and accused the administration of using the coronavirus pandemic and national unrest to speed up actions that have been moving slowly through the regulatory process. “When it comes to trying to unravel this nations’ environmental protection laws, this administration never sleeps,” said Richard Lazarus, professor of environmental law at Harvard University...Mr. Lazarus, the Harvard professor, noted that the environmental policy act provides for federal agencies to consult with the White House on whether “emergency circumstances” make it necessary to waive requirements, but does not give power to waive environmental requirements. “The president’s assertion of authority to waive the application of environmental laws in the way described seems wholly untethered from law,” Mr. Lazarus said. Democratic leaders said the administration’s actions would be particularly harmful to communities of color.

There is much that we still don’t know about the coronavirus and the disease it causes, Covid-19. But for all the mysteries that scientists are still working to solve, we have known from the start that this virus unleashes a brutal assault on the respiratory system, and is especially dangerous for people with lung and heart disease...A new Harvard study has further connected the dots, showing a link between exposure to air particle pollution and severe cases of coronavirus. Despite the evidence, the Trump administration has continued its quest to limit restrictions on the fossil fuel industry, which is the source of much of this pollution...The current PM 2.5 standard requires air particle levels to be limited to 12 micrograms per cubic meter. But the EPA’s draft review in September 2019 estimated that the current PM 2.5 standards are associated with 45,000 deaths annually, and tightening them to 9 micrograms per cubic meter could reduce deaths by up to 27%. Still, the EPA decided to leave the regulations untouched... “It’s a stunning decision by the EPA, but one can’t say that it’s unexpected, only because this administration has made several of these,” said Richard Lazarus, a professor of environmental law at Harvard Law School...In its new cost analysis, the EPA found that the costs of limiting these hazardous pollutants — estimated at between $7.4 billion and $9.6 billion annually — now outweigh the benefits...Lazarus says this could have big consequences when it comes to how the agency regulates other pollutants, and could open existing rules up to challenges in the courts. “They’re indicating that they’re going to measure costs and benefits in a very narrow way, which will reduce the level of benefit calculated as compared to the costs,” Lazarus said. “In future rulemaking, it will be harder to justify tougher hazardous air-pollution standards under the Clean Air Act.”

The Supreme Court on Thursday rejected the Trump administration’s reading of a key part of the Clean Water Act as creating an “obvious loophole” in its enforcement, and gave a partial win to environmentalists in a case from Hawaii. The court ruled 6 to 3 that a wastewater treatment plant in Hawaii could not avoid provisions of the act, which regulates the release of pollutants into rivers, lakes and seas, by pumping the pollutants first into groundwater, from which they eventually reach the ocean. Justice Stephen G. Breyer’s compromise language said an Environmental Protection Agency permit is required when a discharge is “the functional equivalent” of a direct release into navigable waters...In the Hawaii case, environmental law experts agreed that the court’s decision will resonate. The test endorsed by the court’s majority is “one under which environmentalists can prevail in most every kind of case that environmentalists have brought under the Clean Water Act,” said Richard Lazarus, an environmental law expert at Harvard Law School.