Current Supreme Court is damaging to the country, law scholar warns
August 16, 2022
Constitutional law scholar Laurence Tribe, 80, is a professor emeritus at Harvard University, where he has taught since 1968, counting among his former students Barack Obama, Elena Kagan, John Roberts, Merrick Garland, Jamie Raskin, Adam Schiff and Ted Cruz. Tribe has argued dozens of cases before the U.S. Supreme Court and served on President Biden’s bipartisan Presidential Commission on the Supreme Court of the United States. Do you consider the Supreme Court to be in crisis now? Yes. I have no doubt that the court is at a point that is far more dangerous and damaging to the country than at any other point, probably, since Dred Scott. And, in a way, because we even find Justice [Clarence] Thomas going back and citing Dred Scott favorably in his opinion on firearms, the court is dragging the country back into a terrible, terrible time. So I think that it’s never been in greater danger or more dangerous.
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There’s a Lot of Harvard and Yale on the Supreme Court. And That’s OK.
August 8, 2022
An op-ed by Noah Feldman: Eight out of nine Supreme Court justices went to Harvard or Yale law schools. So did nearly a fifth of the federal judiciary. This rankles some politicians, watchdog groups and others who see it as an outrageous manifestation of elitism that needs to be changed, given how much power this small group has over the lives of 329 million Americans. Or does it reflect a more benign aspect of current elite higher education, namely the broad range of students accepted? Above all, does it matter for the functioning of the federal judiciary? Seen in historical context, the presence of so many justices from just two law schools is striking. Consider the great justices appointed by Franklin Roosevelt.
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How to save democracy from the Supreme Court
August 5, 2022
Has the Supreme Court lost the American people? We’re more than a month removed from the Supreme Court overturning Roe v. Wade, a massively consequential decision and arguably a watershed moment for the Court. Whatever your politics, and whatever you think of abortion, this much is clear: The Court made a choice to unsettle established law and shake up the tectonic plates of American society. Now that we’ve had some time to process not just this case but some of the other extreme opinions from the Court’s most recent term — on everything from gun rights to environmental regulation — I wanted to bring on an expert to help us think it all through. So I invited Niko Bowie, a Harvard Law professor and a former clerk for Justice Sonia Sotomayor, to join me for an episode of Vox Conversations. He writes about the issues at the core of this conversation, and last year he testified before President Biden’s Commission on the Supreme Court to discuss potential ways to reform the highest court in the land.
‘Beast Mode’ Biden vs. the Supreme Court
July 25, 2022
With West Virginia Sen. Joe Manchin standing in the way of a big tax-and-spending bill in this Congress and Republicans likely to flip at least one chamber in November, Democrats are urging President Biden to impose his agenda by fiat. “It’s now time for executive Beast Mode,” Rhode Island Sen. Sheldon Whitehouse tweeted on July 14. Mr. Biden didn’t need the encouragement. His administration has been trying to bypass Congress at nearly every turn, from student-loan forgiveness to a backdoor electric-vehicle mandate. But his regulatory monsters will likely run into a judicial buzzsaw. In West Virginia v. Environmental Protection Agency, the Supreme Court last month struck down President Obama’s Clean Power Plan. The justices instructed lower courts to look skeptically on administrative agencies’ claims to divine “in a long-extant statute” a transformative power Congress never expressly delegated. That’s bad news for the executive beast. Start with student-loan forgiveness. Education Department lawyer Toby Merrill argues that a provision in the Higher Education Act of 1965 that allows the secretary to “compromise . . . any right, title, claim, lien, or demand” also empowers the agency to cancel federal student loan debt. Not so fast. This provision applied only to the government’s private-lending program, which Democrats abolished in 2010 when they nationalized the student-loan market to pay for ObamaCare.
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Ketanji Brown Jackson Has Terrible Timing (1)
July 25, 2022
I can’t help but wonder if Ketanji Brown Jackson is feeling a bit crestfallen about her new gig. She’s been on the Supreme Court for less than a month, and we should still be celebrating her elevation as the first Black female justice. But somehow, the party seems over, if it started at all. While there was evident pride and jubilation as she was sworn in by Chief Justice John Roberts, there also was an air of solemnity. What’s sobering is that Jackson’s new role—while hugely significant from a historical perspective—seems strangely inconsequential at this point. … Harvard Law professor Laurence Tribe offered a dose of optimism: “The perspectives and experiences she brings to the court as its first Black woman, and an incredibly brilliant woman at that, are bound to inform what even her most stubborn colleagues think about on which they haven’t firmly made up their minds already,” he said. (Query: Is there anything on which the conservatives “haven’t firmly made up their minds already”?)
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Laurence H. Tribe on “Tavis Smiley”
July 20, 2022
Laurence H. Tribe – Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard. He has taught at its Law School since 1968 and was voted the best professor by the graduating class of 2000. He joins Tavis for a conversation about the Supreme Court’s recent ‘gut punches’. – Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard. He has taught at its Law School since 1968 and was voted the best professor by the graduating class of 2000. He joins Tavis for a conversation about the Supreme Court’s recent ‘gut punches’
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Supreme Court ‘Originalists’ Are Flying a False Flag
July 18, 2022
An op-ed by Noah Feldman: Something surprising is missing from the conservative opinions the Supreme Court issued at the end of its recent term on abortion, religion and gun rights: originalism. The court’s new majority did not decide these era-defining cases using the idea, associated with the late Justice Antonin Scalia and invoked by many of the current justices in confirmation hearings, articles and other forums, that it should apply the Constitution by asking what its words meant to the people who ratified it. Instead, the conservative majority applied what it described in several key opinions as a series of “historical” tests concerning the way the American and English legal traditions approached the issues under review.
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Boston Public Radio full show: July 8, 2022
July 11, 2022
Judge Nancy Gertner discussed the latest news surrounding the Supreme Court of the United States, including calls for court expansion and term limits, the fallout from Dobbs v. Jackson, and the potential for a case justices agreed to hear about elections and redistricting. Gertner is a senior lecturer at Harvard Law School and a BPR contributor.
Charles Fried @The Last Wor
July 8, 2022
Charles Fried interviewed by Lawrence O’Donnell on The Last Word (MSNBC) 6 July 2022
Supreme Court’s Ruling Against the EPA’s Oversight and the Future of Emissions Regulations
July 8, 2022
The U.S. Supreme Court ruled last week that federal regulators, namely the Environmental Protection Agency (EPA), exceeded its authority in seeking to limit emissions from power plants. The decision reduces the authority of the federal government’s executive branch to make policy actions on a broad range of issues and shifts that power to the Congress. We saw this one coming as we discussed last episode, but let’s get up to speed on what’s happened. The Supreme Court ruled 6-3 in a decision penned by Chief Justice John Roberts that the EPA, the Environmental Protection Agency, had overstepped when it devised the Clean Power Plan.1 That plan, enacted during the Obama administration, effectively set a goal for each state to limit carbon emissions, while letting those states determine how to meet those goals. The court said that when federal agencies issue regulations with sweeping economic and political consequences—in this case—rules to address climate change, the regulations are presumptively invalid unless Congress has specifically authorized the action. Chief Justice John Roberts wrote in his decision in West Virginia v. The Environmental Protection Agency, “A decision of such magnitude and consequences rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” … We’re going to break format this episode and bring in our special guests earlier in the show to get a better handle on what happened, why it matters, and what comes next. [Carrie] Jenks is the executive director of the Harvard Law School’s Environmental and Energy Law Program and has studied this issue very closely. And she’s our special guest this week on The Green Investor. Thanks for being here.
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How Congress Can Preempt the Most Dangerous Possible Ruling of the Next Supreme Court Term
July 7, 2022
An article by Nicholas Stephanopoulos: In a one-line order last week, the Supreme Court planted a ticking time bomb that now threatens American democracy. The court agreed to hear a case in which North Carolina legislative leaders argue that state legislatures should be free to regulate congressional elections without any constraints from other state actors. If adopted, this position would revive the Republican gerrymander of North Carolina’s congressional districts, which a state court struck down on state constitutional grounds. In other cases, this position would mean that state legislatures could subvert congressional elections without pushback from governors, state courts, or even state electorates. Fortunately, Congress doesn’t have to sit back and wait for the court’s next potential blow against democracy. Under the same constitutional provision invoked by North Carolina’s politicians, Congress can indisputably nullify their claim of absolute electoral power—and all others like it. That provision is the elections clause of Article I. North Carolina’s politicians fixate on the first half of the clause, which says that “the Legislature” of each state shall regulate the “Times, Places and Manner” of congressional elections. But the clause’s second half authorizes Congress to override any state policies about congressional elections with which it disagrees. “Congress may at any time … make or alter such Regulations.”
3 climate rules threatened by the Supreme Court decision
July 7, 2022
The Supreme Court ruling last week that clipped EPA’s authority to regulate global warming pollution will likely open the door to a flood of challenges claiming government agencies are overstepping their mission to tackle climate change. The court’s decision saying that agency efforts to curb emissions from power plants is a “major question” that Congress did not give EPA the authority to handle has led to a debate over other regulations that may or may not fall under the same label. … The Supreme Court’s ruling made clear the court considered that the doctrine should be applied when agencies rely on little-used or vague provisions of statutes, said Ari Peskoe, director of the Electricity Law Initiative at Harvard University. “That wouldn’t be the case here,” said Peskoe in an email. “FERC permits pipelines under the public convenience and necessity standard, which by its nature gives FERC wide discretion to determine whether to permit a project.”
Continue Reading at E&E News »
Supreme Court ruling may lead to more limited FERC climate reviews for pipelines
July 7, 2022
The U.S. Supreme Court’s recent decision restricting the U.S. Environmental Protection Agency’s authority to regulate planet-warming emissions could constrain efforts by the majority at the Federal Energy Regulatory Commission to elevate consideration of climate change in the agency’s decisions. Republican FERC Commissioner Mark Christie and veterans of the commission told S&P Global Commodity Insights the ruling could be read to support arguments that FERC is limited in how much weight it can give to climate change concerns when deciding whether to grant permits for natural gas infrastructure under the Natural Gas Act — a key issue in FERC’s ongoing review of its decades-old permitting policy. … Ari Peskoe, director of Harvard University’s Electricity Law Initiative, added that the Supreme Court “may have missed the boat” in applying the major questions doctrine to FERC. Peskoe noted in an interview that, around 30 years ago, FERC approved market-based rates and mandated open access for natural gas pipelines and electric transmission.
Continue Reading at S&P Global »
Biden’s court commission appointees: We told you so on expanding the court
July 7, 2022
Long before the Supreme Court rescinded abortion rights, gun control and environmental regulations, President Joe Biden commissioned a body of academics and judicial experts to study the structure and composition of the nation’s high court. The recommendations issued by that bipartisan commission were moderate in scope, focusing on matters of transparency and ethics. Ultimately, they were brushed aside, ignored by a president largely resistant to large-scale reforms. … Former U.S. District Judge Nancy Gertner, who served on Biden’s commission, said in an interview that the court’s striking down of Roe v. Wade, a New York law that restricted open carry, and the ability of the Environmental Protection Agency to regulate carbon emissions vindicated her belief that more seats should be added to the nine-member body. “It was a place of solidity and rational discourse. It really is not anymore,” Gertner said of the Supreme Court. “It really is a set of decisions that they did only because they can. And that is an exercise of pure power, not legal reasoning.” … “His admiration for the court as an institution has been overtaken by reality. And I think it’s time to wake up,” said Harvard Law professor Laurence Tribe, a member of the commission and someone who has advised the Biden White House on legal matters. “It’s the court itself that has plunged ahead without any inhibition on a kind of highly activist, agenda driven, right-wing ideological jihad.”
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The Supreme Court stunted EPA’s climate powers. FERC rules could be the next target.
July 6, 2022
The Supreme Court ruling that curbed the EPA’s authority to regulate greenhouse gas emissions from power plants could spill over into a fight over the scope of the Federal Energy Regulatory Commission’s climate powers. The commission is embroiled in a debate over new rules it is mulling that would direct the agency to take a harder look at how a planned pipeline or liquefied natural gas terminal contributes to climate change. The rules — if adopted — would require closer scrutiny of the effects of locating such projects in low-income neighborhoods and communities of color as well as on private landowners whose properties are seized under eminent domain to build energy infrastructure. … More broadly, the natural gas policy statement does not extend FERC’s reach into new entities or policymaking areas, argued Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. “FERC clearly has authority over permitting pipelines, and Congress chose to grant FERC wide discretion in permitting decisions. In the policy statement, FERC merely announces the factors it will consider in those decisions,” he said in an email.
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There is no conservative legal movement
July 6, 2022
An article by Adrian Vermeule: On the last day of the Supreme Court’s term, in a case called West Virginia v. Environmental Protection Agency, the Court declared that the Clean Air Act does not clearly authorize the EPA to create a Clean Power Plan — in other words, to set standards for emissions from existing power plants with a view to encouraging “generation shifting” of electricity production toward sources that emit less carbon dioxide. If this does not sound like the stuff of great events, it was made so by the court’s approach to the case. Chief Justice John G. Roberts Jr., writing for the majority, announced expressly, for the first time, that the court would apply a “major questions doctrine.” According to the majority, the doctrine holds that in “extraordinary cases” the court will apply a “different approach” than the ordinary legal principles governing the interpretation of statutes. Instead, it will demand clear congressional authorization for agency action that is, in the judges’ view, “highly consequential,” posing questions of “economic and political significance.”
Continue Reading at The Washington Post »
Can Supreme Court justices be impeached? Could the court be expanded? Your burning questions, answered.
July 6, 2022
Over recent weeks, the public eye has turned toward the Supreme Court with fresh scrutiny. A conservative majority issued a series of blockbuster decisions this term on abortion rights, gun laws, and greenhouse gas emissions, drawing heightened attention to the court itself, including how justices are selected and confirmed and concerns about the potential politicization of the judicial system. … Justices can only be removed through impeachment by the House of Representatives and conviction by the Senate. But what actions provide grounds for impeachment are not specified in Article III of the Constitution, according to Laurence Tribe, a constitutional scholar and Harvard Law School professor. “It says that judges serve during good behavior, and it’s generally regarded as equivalent to the idea of abuse of power, in the same way that the president is impeachable for abuse of power,” he said. “It doesn’t have to be literally a crime.” … Both Tribe and Judge Nancy Gertner, a retired federal court judge and professor at Harvard Law School, served on the commission. While Tribe had been in favor of term limits for years, he said his perspective on the issue has changed. Although there is a legitimate argument, Tribe said, that term limits could be implemented by statute, he believes the constitutional objections are serious enough that the “current court would end up ruling that it’s unconstitutional to do without a constitutional amendment.” Gertner expressed similar apprehensions. She noted that there is no other major democracy in the world that has a life term for their justices on courts of equal standing. But implementing term limits, Gertner argued, would mandate a constitutional amendment — a complicated process and one rarely executed with success. To that point, it hasn’t been done since 1992.
Continue Reading at The Boston Globe »
Originalism: The legal theory guiding conservative Supreme Court justices, explained
July 6, 2022
Last month, the Supreme Court handed down closely watched rulings in several cases that included ending the constitutional right to an abortion, expanding the right to carry guns and limiting Environmental Protection Agency’s powers to cut carbon dioxide emissions. All of these rulings were led by the conservative supermajority on the court, who were guided by the niche judicial philosophy known as “originalism.” What is this theory? Where does it come from? And what could this philosophy mean for the future of the United State of America? Here & Now talks with Harvard University law professor Noah Feldman.
The Supreme Court decision limiting the EPA’s power makes corporate action on climate change more important than ever
July 6, 2022
The Supreme Court ruled, as expected, to limit the scope of the Environmental Protection Agency’s ability to regulate pollution last week by constraining the agency’s authority to areas explicitly approved by Congress. In doing so, the courts hobbled the EPA’s power to combat climate change, and relegated the fight to Congress. “That’s a very big deal because [the EPA is] not going to get [authority] from Congress because Congress is essentially dysfunctional,” Harvard law professor Richard Lazarus, an expert on environmental law, told NPR.
SCOTUS Decision May Limit More Than Just the EPA
July 6, 2022
The Supreme Court wrapped up its history-making term last week with a shot across the bow at government regulatory agencies. One of its two final rulings, West Virginia v. EPA, saw the court rule 6-3 along ideological lines that the Clean Air Act does not give the Environmental Protection Agency broad authority to regulate greenhouse gas emissions from power plants. Ruling for the state of West Virginia, the conservative justices struck down EPA standards designed to fight climate change by reshaping electricity grids. Such standards qualify as “major questions,” wrote Chief Justice John Roberts in his majority opinion, requiring explicit authorization by Congress. … Laurence Tribe, University Professor Emeritus of Constitutional Law at Harvard, told RealClearPolitics that the current court “is going rogue and seems almost drunk with the power acquired with its stacking by Trump and his three new Justices.”
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Could Supreme Court ruling thwart FERC’s clean energy plans?
July 6, 2022
The landmark Supreme Court decision last week restricting EPA’s regulation of climate-warming emissions could spill over to the Federal Energy Regulatory Commission, which is seen as critical for advancing clean energy. In a 6-3 opinion, the Supreme Court ruled that the Clean Air Act did not authorize EPA to craft a broad rule targeting emissions from power plants like the Obama-era Clean Power Plan.The court majority justified the ruling using the “major questions” doctrine, a relatively new legal theory that holds that Congress must clearly express when agencies are allowed to decide matters of “vast economic and political significance” (Greenwire, June 30). Some observers say that could stunt potential new rules from agencies such as FERC, particularly on issues that pertain to climate change. … Environmental groups and some legal experts have disputed the notion that the major questions doctrine could stand in the way of FERC considering climate impacts, arguing that the commission has broad discretion to balance all costs and benefits of a project before approving it. Differing from Chatterjee, Ari Peskoe, director of the Electricity Law Initiative at Harvard Law, said the Supreme Court ruling should not change that. “FERC clearly has authority over permitting pipelines, and Congress chose to grant FERC wide discretion in permitting decisions,” Peskoe said in an email.
Continue Reading at Politico »
Op-Ed: The Supreme Court is poised to cut the heart out of majority rule
July 5, 2022
An op-ed by Laurence Tribe: The Supreme Court’s extremist justices are aiming their next dagger at the heart of the entire democratic enterprise: voters’ right to pick leaders of their choice. On Thursday, the court announced that it will hear Moore vs. Harper, a North Carolina case involving gerrymandered congressional district maps drawn by the state’s Republican-controlled Legislature. Those maps would probably give Republicans control of 11 of 14 congressional districts in the state. In Moore, Republican state legislators petitioned the U.S. Supreme Court, advancing a debunked right-wing doctrine innocuously labeled the “independent state legislature” theory. It maintains that state courts can play no role in overseeing their legislatures in federal election matters.
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The Supreme Court just upended environmental law at the worst possible moment
July 5, 2022
An op-ed by Richard Lazarus: The Supreme Court just made official what environmentalists have dreaded would come to pass as soon as Donald Trump was elected president: A radically conservative majority, in West Virginia v. Environmental Protection Agency, has seriously threatened environmental law’s ability to safeguard public health and welfare. Our nation’s environmental protection laws have been enormously successful over the past 50 years or so. Notwithstanding their obvious gaps and persistent shortfalls, they have significantly reduced air, water and land pollution across the country while the nation’s economy has grown exponentially. No less important, they have prevented the kind of environmental devastation and public health disasters that have occurred in nations lacking such laws.
Continue Reading at The Washington Post »
Like None Other: Profound Impact Of Conservative US Supreme Court
July 5, 2022
Two years after President Donald Trump filled its ranks with conservatives, the US Supreme Court has engineered a sharp turn in US constitutional law that could have a profound effect on American life for decades. Key decisions that rescinded abortion rights, permit Americans to tote their guns freely in public, expand religion in schools, remove voting rights protections, and impede the government’s ability to set controls on greenhouse gases, have turned long-accepted rules of justice on their heads. With a 6-3 majority on the bench, the conservatives led by Chief Justice John Roberts represent a mighty swing of the judicial pendulum from decades of a modestly progressive course. … “The court knows that Congress is effectively dysfunctional,” said Harvard University law professor Richard Lazarus. Yet it “threatens to upend the national government’s ability to safeguard the public health and welfare at the very moment when the United States, and all nations, are facing our greatest environmental challenge of all.”
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Roe v. Wade’s fall is a ‘turning point’ for Chief Justice John Roberts’ control over the Supreme Court, court watchers say
July 5, 2022
The Supreme Court’s conservative wing eradicated the constitutional right to abortion — and Chief Justice John Roberts could not stop them. Roberts, who favors incremental rather than sweeping changes to the law, sought to weaken Roe v. Wade, the 1973 landmark ruling that legalized abortion nationwide. But the other five conservative justices charged full steam ahead without him, overturning 50 years of precedent and handing abortion decision-making to the states. … “He’s moved from being a necessary vote for the conservative bloc to being basically not necessary,” I. Glenn Cohen, a professor at Harvard Law School, told Insider. “He’s no longer needed for the conservative justices to have their way.”
Continue Reading at Business Insider »
EPA retains tools to cut power sector GHG emissions despite Supreme Court curbing its authority: attorneys
July 5, 2022
The Environmental Protection Agency still has pathways for reducing greenhouse gas emissions from the power sector following the Supreme Court’s ruling on Thursday that took away one possible avenue, according to legal experts. The court ruled that the EPA cannot set up a program that uses “generation shifting” among a broad fleet of power plants, such as the Obama administration’s Clean Power Plan. Under the program, states would have had to meet state-wide emissions reduction targets, potentially by replacing coal-fired power plants with lower- or non-emitting generating resources. … It is a narrow opinion focused on generation shifting that doesn’t get into “inside or outside the fence line distinctions,” Carrie Jenks, executive director of the Harvard Law School’s Environmental & Energy Law Program, said.
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Supreme Court’s EPA ruling goes far beyond climate change
July 5, 2022
An op-ed by Jody Freeman: The Supreme Court just made it harder for President Biden, and any future president, to fight climate change using executive power. The decision also limits federal regulation more broadly. In the most important climate case in 15 years, the justices voted 6-3 to sharply limit the Environmental Protection Agency’s authority to regulate carbon pollution from the nation’s power plants. Power plants are the largest source of greenhouse gas pollution and produce one quarter of US emissions. The consequences for climate progress are serious, but the case, West Virginia v. EPA, has far-reaching implications beyond climate change. The court’s reasoning could restrict federal regulation across agencies, making it more difficult to protect consumers, set standards for health and safety, and regulate financial markets, among other things.
Continue Reading at The Boston Globe »
Supreme Court Embraces Originalism In ‘Momentous’ Term
July 5, 2022
The October 2021 Supreme Court term will be remembered as the most consequential one in generations, experts said, pointing to sweeping rulings affecting the rights of millions of Americans and establishing a new conservative vision of constitutional law. In their first full term together on the Supreme Court, the court’s six conservative justices eschewed the incrementalism of recent terms and delivered long-sought victories to the political right on divisive cultural issues, while championing judicial methods like textualism and originalism that had once been relegated to the fringes of the court’s jurisprudence. … “I think what it has done is trashed the entire enterprise,” Harvard Law professor Laurence Tribe told Law360 in an interview. “No serious constitutional scholar can teach constitutional law on the basis of what is not even an effort to take doctrine seriously. There is nothing in any of these opinions that can be extrapolated into a predictive course of adjudication in the future. The court has made clear that it will do what it wants to do because it now has the votes.”
Supreme Court restricts EPA’s ability to go big on climate
July 5, 2022
EPA’s ability to curb greenhouse gas emissions from coal-fired power plants was sharply curtailed, but not eliminated, by a Supreme Court ruling yesterday that underscores the challenges of achieving significant climate gains in the United States. In a 6-3 opinion on the most significant climate change case to reach the high court in a decade, the justices found that Congress did not give EPA the authority to impose a sweeping emissions rule like the Obama-era Clean Power Plan, a proposal that was never applied in the real world. That leaves the Biden administration — which had no plans to use the dormant Clean Power Plan — with fewer options to tackle the second-largest source of climate warming emissions in the country. The ruling is a “major setback” for EPA’s ability to address climate change, said Harvard University environmental law professor Richard Lazarus, who noted it “could hardly have come at a worse time.” “Fortunately, the Clean Air Act statutory provision at issue in this case is not the only basis upon which the agency may rely to address climate change,” he added. “But the court’s ruling is plainly a deliberate shot across the bow over EPA’s most ambitious plan.”
Continue Reading at E&E News »
The Supreme Court’s Conservatives Have Asserted Their Power
July 5, 2022
An essay by Jeannie Suk Gersen: The lasting depredations of the Trump Presidency were brought into sharp focus by last week’s testimony before the House Select Committee investigating the events of January 6th, which left an indelible portrait of Donald Trump as a food-throwing despot willing to encourage an armed mob to march to the Capitol. And, in addition to an attempted coup, we have him to thank for 2022’s becoming the turning point of the Supreme Court’s conservative revolution.
Continue Reading at The New Yorker »
Court Decision Leaves Biden With Few Tools to Combat Climate Change
July 5, 2022
One by one, the tools available to President Biden to fight climate change are being stripped away. After a Supreme Court decision on Thursday, the Environmental Protection Agency will have less authority to limit carbon dioxide from power plants, a major source in this country of the pollution that is dangerously heating the planet. It’s one in a series of setbacks for Mr. Biden, who came into office with the most ambitious climate agenda of any president, pledging to the rest of the world that the United States, the world’s largest historic emitter of greenhouse gases, would cut that pollution in half by the end of the decade. … “The judicial branch and the legislative branch are seriously hindering Joe Biden’s ability to get the job done on climate,” said Richard Lazarus, a professor of environmental law at Harvard, who served on Mr. Biden’s E.P.A. transition team. “A lot of the optimism that everyone had a year ago is being replaced by pessimism. They’re running out of options right now.”
Continue Reading at The New York Times »
Supreme Court rulings muddy regulatory waters
July 5, 2022
The Supreme Court is reining in the power of federal regulators. Why it matters: Companies across the board could face a patchwork of rulings by different courts, rather than one agency’s decision, former FCC official Blair Levin told the Washington Post. Catch up quick: A Supreme Court ruling issued today questioned and limited the EPA’s authority on the nation’s power industry. … Using the doctrine has the potential to open up a flurry of litigation and “to put agencies on the defensive for every decision that anybody can say is major,” Jody Freeman, Harvard Law School professor and former climate adviser for the Obama administration, tells Axios.
Gridlock in Congress Has Amplified the Power of the Supreme Court
July 5, 2022
On the last day of a turbulent term that included rulings on what the Constitution has to say about abortion, guns and religion, the Supreme Court issued another sort of decision, one that turned on the words of the Clean Air Act. Without “clear congressional authorization,” the court said, the Environmental Protection Agency was powerless to aggressively address climate change. In years past, that might have been the start of a dialogue with Congress, which after all has the last word on what statutes mean, because it can always pass new ones. … “If you go back to the ’80s, every time the court did something Congress didn’t like, they passed a law,” said Richard J. Lazarus, a law professor at Harvard. “It was an iterative process between Congress, the agencies and the courts.”
Continue Reading at The New York Times »
Conservative Justices limit the EPA’s power to regulate greenhouse gas emissions
July 5, 2022
On this edition of Your Call, we discuss the 6-3 Supreme Court ruling that curtails the EPA’s power to force power plants to reduce carbon pollution. Those plants make up a quarter of greenhouse gas emissions in the US, according to the EPA. In her dissent, Justice Elena Kagan wrote, “The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening. Whatever else this Court may know about, it does not have a clue about how to address climate change.” … Richard Lazarus, professor of environmental law, natural resources law, and Supreme Court advocacy at Harvard University
What you need to know about the Supreme Court’s EPA case
July 5, 2022
The Supreme Court on Thursday curtailed the Environmental Protection Agency’s ability to cut climate-warming carbon from the nation’s power plants, handing down a decision in the biggest court case on climate change in more than a decade. The ruling, written by Chief Justice John G. Roberts Jr. and signed by the court’s five other conservatives, is a major blow to the nation’s chances of averting catastrophic climate change. And it is the latest instance of the court’s emboldened conservative majority flexing its muscle following its decision to strike down Roe v. Wade. … When it comes to the EPA, there is still “something of a silver lining here,” according to Jody Freeman, a Harvard Law School professor.
Continue Reading at The Washington Post »
Guns and abortion: Contradictory decisions, or consistent?
July 5, 2022
They are the most fiercely polarizing issues in American life: abortion and guns. And two momentous decisions by the Supreme Court in two days have done anything but resolve them, firing up debate about whether the court’s conservative justices are being faithful and consistent to history and the Constitution — or citing them to justify political preferences. To some critics, the rulings represent an obvious, deeply damaging contradiction. How can the court justify restricting the ability of states to regulate guns while expanding the right of states to regulate abortion? … Both decisions “come from the same court whose legitimacy is plummeting,” said Laurence Tribe, a leading scholar of Constitutional law and emeritus professor at the Harvard Law School.
US Supreme Court hobbles the EPA’s authority over climate emissions
July 5, 2022
The US Supreme Court has limited the regulatory tools that the Environmental Protection Agency (EPA) can use to curb greenhouse-gas emissions, dealing a massive blow to US President Joe Biden’s climate agenda. Academics and environmentalists lamented the loss of authority, as well as the precedent that it could set for the EPA — and potentially for other US agencies trying to tackle important societal issues in innovative ways. … It’s a high bar that will limit the EPA’s ability to act in the years to come, says Richard Lazarus, a legal expert at Harvard University in Cambridge, Massachusetts. And the odds that Congress is going to step in and provide the agency with new climate authority any time soon are “essentially nil”.
Supreme Court’s EPA ruling goes far beyond climate change
July 5, 2022
An article by Jody Freeman: The Supreme Court just made it harder for President Biden, and any future president, to fight climate change using executive power. The decision also limits federal regulation more broadly. In the most important climate case in 15 years, the justices voted 6-3 to sharply limit the Environmental Protection Agency’s authority to regulate carbon pollution from the nation’s power plants. Power plants are the largest source of greenhouse gas pollution and produce one quarter of US emissions.
Continue Reading at The Boston Globe »
With time ticking for climate action, Supreme Court limits ways to curb emissions
July 5, 2022
For two decades, Congress has failed to pass standalone climate change legislation. That left the Obama White House to rely on the 1970 Clean Air Act in order to craft regulations that would reduce greenhouse gas emissions from power plants, currently the second most carbon-polluting sector in the country. In its opinion in West Virginia v. the Environmental Protection Agency, the U.S. Supreme Court has now curbed what actions the Biden White House can take under that law. … “The court restrained itself from saying, ‘You can’t do this and you can’t do that,’” said Jody Freeman, Founding Director of the Harvard Law School Environmental Law and Policy Program. Options like co-firing coal with low-polluting fuels are still on the table, for example. The majority opinion also explicitly did not rule out a cap-and-trade system, which Freeman called, “the silver lining in the in the opinion.”
The effect the Supreme Court’s climate decision may have
July 5, 2022
The U.S. Supreme Court ruled that the Environment Protection Agency does not have the authority to mandate carbon emissions reductions from existing power plants. … You know, without congressional action to actually fund the kind of transformative promises Biden made, he was always going to have a harder time trying to drastically cut emissions, just using the power of regulation alone. What this ruling does is just make what he can do by regulation smaller, you know. And this is a key area of carbon emissions. Making electricity creates about a quarter of the greenhouse gas emissions the U.S. emits every year. And the country needs to move away from burning fossil fuels for the U.S. to have a chance of keeping warming in check. But, you know, one upside of this ruling, says Jody Freeman, the founding director of Harvard Law School’s environmental law and policy program, is that it doesn’t rule out all other tools. JODY FREEMAN: They did go out of their way, in the opinion, to say we’re simply – we’re ruling out the Clean Power Plan, but we’re not tying EPA’s hands in any other specific way. So I thought that was the silver lining in the opinion.
The Silver Lining in the Supreme Court’s Decision to Limit Carbon Emission Regulations
July 5, 2022
On Thursday morning, the Supreme Court issued a 6–3 decision to limit the Environmental Protection Agency’s ability to regulate greenhouse gases from the power sector using a specific provision of the Clean Air Act. Capping power plant emissions, Chief Justice John G. Roberts Jr. wrote on behalf of the majority, is a decision that “rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” The Obama administration’s Clean Power Plan, the court ruled, went about it the wrong way, using powers Congress had not authorized for that purpose. Besides providing some good news for the coal industry, the court today welcomed all manner of challenges to the administrative state itself. … “It’s bad news,” said Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School, before adding that “there is, relatively speaking, a silver lining here.… What’s important is that clearly the EPA still has the authority to regulate greenhouse gases,” including from power plants, if it uses a different approach.
Continue Reading at The New Republic »
Supreme Court restricts the EPA’s authority to mandate carbon emissions reductions
July 5, 2022
The U.S. Supreme Court on Thursday dealt a major blow to the Environmental Protection Agency’s power to regulate carbon emissions that cause climate change. The decision by the conservative court majority sets the stage for further limitations on the regulatory power of other agencies as well. By a vote of 6 to 3, the court said that any time an agency does something big and new – in this case addressing climate change – the regulation is presumptively invalid, unless Congress has specifically authorized regulating in this sphere. “That’s a very big deal because they’re not going to get it from Congress because Congress is essentially dysfunctional,” said Harvard law professor Richard Lazarus, an expert on environmental law. “This could not have come at a worse time” because “the consequences of climate change are increasingly dire and we’re running out of time to address it.”
How the Supreme Court ruling will gut the EPA’s ability to fight the climate crisis
July 5, 2022
The Supreme Court on Thursday dealt a major blow to climate action by handcuffing the Environmental Protection Agency’s ability to regulate planet-warming emissions from the country’s power plants, just as scientists warn the world is running out of time to get the climate crisis under control. It is a major loss for not only the Biden administration’s climate goals, but it also calls into question the future of federal-level climate action and puts even more pressure on Congress to act to reduce emissions. … Carrie Jenks, the executive director of Harvard Law School’s Environmental & Energy Law Program, shared Duffy’s concern about the uncertain definition of a “major question.” “The court is saying you can’t do big things without Congress speaking, so what is a big thing?” Jenks told CNN. “This doctrine is just starting to emerge from the court. This doctrine is starting to be more defined. I think they will continue to use Major Questions Doctrine to oppose EPA rulemakings.”
Supreme Court’s EPA ruling upends Biden’s environmental agenda
June 30, 2022
The Supreme Court’s ruling Thursday limiting the Environmental Protection Agency’s ability to regulate carbon emissions could have far-reaching consequences, according to legal experts, which could curb President Biden’s ambitious plans to tackle climate change along with air and water pollution. … Jody Freeman, a Harvard Law School professor, said the court could have gone further in limiting the EPA’s authority. The majority allowed the agency to continue regulating carbon emissions from power plants — it just cannot do so by forcing utility companies to shift from coal to renewable energy. There is “something of a silver lining here,” Freeman said. “It leaves a pathway for EPA to still set meaningful standards.”
Continue Reading at Washington Post »
With time ticking for climate action, Supreme Court limits ways to curb emissions
June 30, 2022
For two decades, Congress has failed to pass standalone climate change legislation. That left the Obama White House to rely on the 1970 Clean Air Act in order to craft regulations that would reduce greenhouse gas emissions from power plants, currently the second most carbon-polluting sector in the country. In its opinion in West Virginia v. the Environmental Protection Agency, the U.S. Supreme Court has now curbed what actions the Biden White House can take under that law. … “The court restrained itself from saying, ‘You can’t do this and you can’t do that,’” said Jody Freeman, Founding Director of the Harvard Law School Environmental Law and Policy Program. Options like co-firing coal with low-polluting fuels are still on the table, for example. The majority opinion also explicitly did not rule out a cap-and-trade system, which Freeman called, “the silver lining in the in the opinion.”
Supreme Court Has Taken Control of Climate Policy
June 30, 2022
An op-ed by Noah Feldman: By a 6-3 vote, the Supreme Court has held that the Environmental Protection Agency lacks authority to order reduced emissions to fight climate change. Yes, you read that right. In an opinion by Chief Justice John Roberts, the conservative justices said that Congress had not authorized a 2015 rule adopted by the agency aimed at shifting energy use from coal to natural gas and from fossil fuels to renewables. Climate change now joins abortion, guns, and church and state in the list of high-profile, emotionally charged topics on which the justices have issued landmark conservative opinions this term.
Continue Reading at Bloomberg Opinion »
Supreme Court Is Eroding the Wall Between Church and State
June 27, 2022
An op-ed by Noah Feldman: In another bombshell opinion, the Supreme Court’s conservative majority has upended the way it understands and applies the clause of the Constitution that prohibits the establishment of religion. Completing the revolution begun in last week’s decisions expanding gun rights and overturning abortion law, the court said in Kennedy v. Bremerton School District that it was abandoning long-established constitutional doctrine and replacing it with a historical analysis. This means that in establishment cases the court will no longer examine government action to see if it has a secular purpose and effect, or sends a message of government endorsement of religion. Instead, the court will consider whether government action violates the establishment clause only “by reference to historical practices and understandings.”
Continue Reading at Bloomberg Opinion »
Supreme Court Just Made New York’s Streets Meaner
June 24, 2022
An op-ed by Noah Feldman: In a stunningly broad and transformative decision, the Supreme Court has struck down the New York law that says you can only carry a concealed handgun outside your home if you can show you have “proper cause” to do so. For New Yorkers and residents of six other states including California and Massachusetts, this means concealed carry is now basically an automatic right. Anyone you meet on the street or in the car ahead of you may be lawfully packing. For gun rights more generally, the opinion is perhaps even more consequential. Decided 6-3 along pure ideological lines, the opinion by Justice Clarence Thomas astonishingly makes Second Amendment rights even more protected than all the other fundamental rights in the constitutional pantheon. It also applies historical analysis so narrowly and bizarrely that it calls into question the very practice.
Continue Reading at Bloomberg Opinion »
The Supreme Court’s gun ruling is bad, but not for the reasons you might think
June 24, 2022
The Supreme Court’s 6-t0-3 decision striking down New York’s licensing requirements for handguns is not nearly as broad as some are characterizing it. But the convoluted reasoning behind the ruling is perhaps more dishonest than even the court’s worst critics imagine. Justice Clarence Thomas’s majority opinion striking down the law, which permitted state authorities to exercise discretion in issuing a concealed-carry license, is an exercise in sophistry. He perfectly distills the intellectual dishonesty deployed by self-described “originalists” to reach an outcome they favor. … Harvard University’s Laurence Tribe, a constitutional scholar, tells me the three concurrences and the dissent provide “welcome boundaries on the otherwise outsized reach of the Thomas majority opinion.” But, he says, it would have been far better for the court to have “enumerated concretely the specific sorts of safety measures that are likely to win five votes.” Instead, lawmakers are left adrift and confused.
Continue Reading at The Washington Post »
The Supreme Court Has Just Eroded First Amendment Law
June 22, 2022
An op-ed by Noah Feldman: In an extremely important church-and-state decision, the Supreme Court has held that if the state of Maine decides to pay for a child’s private education in lieu of a public one, it must allow its tuition money to be used at religious schools. The 6-3 decision, Carson v. Makin, profoundly undermines existing First Amendment law. It represents the end of the centuries-old constitutional ban on direct state aid to the teaching of religion. And remarkably, it does all this in the name of religious liberty, giving the free-exercise clause of the First Amendment primacy over the establishment clause found in the exact same amendment. The framers’ conception of the two religion clauses of the First Amendment had two parts that fit together. The establishment clause meant the government couldn’t make you perform a religious act or spend taxpayer dollars on religion. The free exercise clause said the government couldn’t stop you from performing a religious act, understood as prayer or preaching or teaching or belief.
Continue Reading at Bloomberg Opinion »
Tensions simmer as US Supreme Court’s blockbuster summer drags on
June 21, 2022
Waiting on the US Supreme Court’s final decisions of the term has become a venerable summer pastime. But this year, the wait has been especially fraught. Eighteen decisions remain before the court officially ends its current term, traditionally by June or early July. They include some of the court’s most eagerly anticipated cases, including on the fate of Roe vs Wade and abortion rights, as well as guns, environmental regulation and school prayer. As the wait for pivotal cases continues, tensions have grown, with protesters demonstrating at justices’ homes, barriers being raised outside the court and authorities bolstering support for the court’s police. … Michael Klarman, professor of American legal history at Harvard Law School, said the court was confronting one of the “most extreme crises in [its] history with regard to legitimacy”. Key to that crisis, according to Klarman, was the effort by Mitch McConnell, the Senate’s top Republican, to block confirmation hearings for Barack Obama’s nominee Merrick Garland in the final year of Obama’s presidency — “essentially stealing a seat” that could have been filled by Democrats, Klarman said.
Continue Reading at Financial Times »
Without Roe protections, rights are at stake even in abortion-friendly states
June 21, 2022
If the Supreme Court ends up weakening or outright overturning Roe v. Wade, the decision could result in a patchwork of laws across the country and trigger legal challenges between states that ban abortion and those that allow them, according to legal analysts who have followed the polarizing debate. The resulting political divide between states and conflicting laws, analysts said, could create an uncertain legal landscape for those looking to cross state lines for abortion services, as well as those who help them — perhaps even the Uber driver who takes a woman to a clinic or the philanthropist who donates to a fund that helps patients afford the travel and expense, analysts warn. … “It’s a gray area, that’s the reality of it,” said Mary Ziegler, a visiting professor of constitutional law at Harvard Law School, who specializes in reproductive and health care law. “Neither of these bodies of law have been fully developed,” she said. “If you’re looking for guidance there, there’s not much.”
Continue Reading at The Boston Globe »
Supreme Court Makes Immigration Lockup Harder to Escape
June 16, 2022
An op-ed by Noah Feldman: In a pair of immigration law opinions today, the Supreme Court made things harder for noncitizens indefinitely detained by immigration authorities. In one, decided almost unanimously and written by Justice Sonia Sotomayor, the court ended the existing requirement that such people get hearings after six months of detention to see if they could be released on bond into the US. In the other, decided 6-3 over a sharp partial dissent from Sotomayor, the justices held that detainees lack the legal authority to challenge the circumstances of their confinement through a class-action suit. Together, the opinions signal that the Supreme Court is less sympathetic to detention conditions than the lower courts.
Continue Reading at Bloomberg Opinion »
Bracing for the End of Roe v. Wade, the White House Weighs Executive Actions
June 16, 2022
President Biden’s top aides are weighing whether he can or should take a series of executive actions to help women in Republican-controlled states obtain abortions if the Supreme Court eliminates a woman’s right to end her pregnancy, according to senior administration officials. Some of the ideas under consideration include declaring a national public health emergency, readying the Justice Department to fight any attempt by states to criminalize travel for the purpose of obtaining an abortion, and asserting that Food and Drug Administration regulations granting approval to abortion medications pre-empt any state bans, the officials said. … Laurence Tribe, a Harvard Law School professor who has consulted with Ms. Remus’s team, said in an interview that while he did not want “to pour cold water on people’s peaceful reactions to impending disaster,” some of the proposals the White House was being lobbied to consider were unwise and implausible extensions of executive power. “It would take attention from the things that are really relevant — that the Supreme Court is out of control and we ought to be very critical of it — and shift the criticism to the president for responding in kind and doing things that are every bit as ungrounded in the Constitution as the court’s overruling of Roe will be,” Mr. Tribe warned.
Continue Reading at The New York Times »
The Supreme Court’s Legitimacy Crisis: From Recusal Issues to Blatant Partisanship
June 16, 2022
In a one-paragraph decision issued in January, the Supreme Court ruled that former president Donald Trump was required to turn over documents to the House committee investigating the January 6 insurrection. It was an unsurprising decision, described by commentators as “entirely consistent with existing law.” In a Supreme Court where a third of the members were appointed by Trump, only Clarence Thomas noted his dissent. Thomas would have permitted the Trump White House to shield its records from congressional scrutiny. Initially, Thomas’s dissent was notable but not shocking. Thomas is a staunch conservative, frequently willing to go further to advance the right-wing agenda than many or all of his colleagues on the bench. But over the last several months, new reporting has suggested that Thomas’s dissent may not have stemmed strictly from a different interpretation of the relevant law. … Beyond the immediate term, we need to prioritize putting power back in the hands of democratically accountable individuals. As Harvard law school professor Niko Bowie shared with the Presidential Commission on the Supreme Court of the United States, the “Supreme Court is an anti-democratic institution.… The Court has wielded an anti-democratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status.”
Continue Reading at Teen Vogue »
Double Jeopardy: Barrett Defeats Gorsuch on Tribal Law
June 14, 2022
An article by Noah Feldman: In a noteworthy 6-3 decision written by Justice Amy Coney Barrett, the Supreme Court has allowed the federal government to retry and reconvict a member of an Indian tribe who was previously tried and convicted in a special federal administrative court for Native Americans. Justice Neil Gorsuch wrote a stinging dissent calling this a clear violation of double jeopardy. The dissent solidifies Gorsuch’s role as the court’s staunchest defender of tribal sovereignty, one willing to call out historical injustices against American Indians. At the same time, the 6-3 result hints that an important 2020 decision on tribal sovereignty written by Gorsuch, McGirt v. Oklahoma, might be one of the only times Gorsuch gets a majority for his views on the issue.
Continue Reading at Bloomberg Opinion »
The Supreme Court Has a Nasty Surprise in Store for Business
June 9, 2022
An op-ed by Noah Feldman: Everyone can agree that overturning Roe v. Wade will have major consequences for individual women in the US. Less obvious is the impact on American corporations that will emerge from the Supreme Court’s expected simultaneous reversal of Planned Parenthood v. Casey — the 1992 decision that emphasized the value of upholding precedent and avoiding social upheaval to justify keeping Roe in place. By overturning Casey, the court will send a clear message to state legislators that it is open season for them to pass blatantly unconstitutional laws in the hopes that the justices might reverse more precedents. Legislatures can be expected to pass laws barring companies from paying for out-of-state abortions, for example, and reversing well-established rights like gay marriage and even access to some forms of contraception.
Continue Reading at Bloomberg Opinion »
The Supreme Court Is Not Supposed to Have This Much Power
June 8, 2022
An article co-written by Nikolas Bowie and Daphna Renan: It’s June again—that time of year when Americans wake up each morning and wait for the Supreme Court to resolve our deepest political disagreements. To decide what the Constitution says about our bodily autonomy, our power to avert climate change, and our ability to protect children from guns, the nation turns not to members of Congress—elected by us—but to five oracles in robes. This annual observance of judicial supremacy—the idea that the Supreme Court has the final say about what our Constitution allows—is an odd affliction for a nation that will close the month ready to celebrate our independence from an unelected monarch. From one perspective, our acceptance of this supremacy reflects a sense that our political system is simply too broken to address the most urgent questions that we confront. But it would be a mistake to see judicial supremacy as a mere symptom of our politics and not a cause.