It’s not a novel idea that control of the U.S. Supreme Court is one of the great prizes in contemporary presidential elections. Indeed, in 2016 Donald Trump shrewdly made uniquely specific SCOTUS promises to white conservative evangelicals that bonded them to his candidacy (and, when he kept those if not other promises, his presidency) in record numbers. Without question, progressives are waking up to the strong possibility that a second Trump term with an aging Court will likely produce a reversal of many key constitutional precedents, particularly those involving reproductive rights, voting rights, and corporate regulation. The composition of SCOTUS could be (and most definitely ought to be) a serious voting issue for Democrats as well as Republicans next year.
But until now nobody’s talked a lot about the Court as a potential stumbling block to increasingly urgent efforts to stop — and, if possible, reverse — climate change. As the Washington Post’s Greg Sargent explains, that could change thanks to an academic study of conservative legal thinking and how it might collide in the Supreme Court with legislation like the proposed Green New Deal:
What makes the study interesting is that it uses the justices’ past rulings, as well as other conservative legal scholarship, to elaborate a picture of the specific legal doctrines they might employ to strike down efforts to legislate against global warming. The study concludes that their records clearly demonstrate they will have many such doctrines to weaponize in this fashion.
Here are some specifics from the study itself:
The Court’s conservative justices have an array of dubious legal interpretations at their disposal for dismantling climate change legislation, including an exceedingly narrow interpretation of statutes that empower federal agencies, an expansive reading of the Takings Clause and the Tenth Amendment, and a preferential application of the Commerce Clause. Given the Roberts Court’s track record of applying doctrine arbitrarily to suit preferred policy outcomes, it seems unlikely that climate change legislation would survive judicial review.
The study (conducted by Samuel Moyn of Yale Law School and Aaron Belkin of San Francisco State University) focuses on the views of Trump appointees Gorsuch and Kavanaugh, and of Chief Justice John Roberts, who has been carefully but steadily leading the Court into a position to protect conservative interests on a broad range of issues — most particularly those involving economic privilege. Some of the issues they raise — particularly the hostility of conservative jurists to delegation of congressional authority to agencies or state governments — illustrate opportunities the Roberts Court could have to slow down or hamstring climate-change action even if it declines to make a frontal assault.
It should be noted that Moyn and Belkin are both associated with a progressive group — Take Back the Court — that advocates radical solutions to obstruction by the Court, including expansion of the number of Justices serving on SCOTUS. But they credibly cite the urgency of the climate-change challenge to point to an earlier occasion — the Great Depression — when reactionaries on the Court became an immovable object resisting the irresistible force of the original New Deal, as Sargent observes:
In the end, we face a situation that’s in some ways similar to the New Deal. The country faced an emergency at the time, yet proposed government responses were blocked by a Supreme Court driven by doctrinal opposition to many such actions (not to mention fealty to plutocratic interests) until the dam was broken.
Perhaps progressives should save their proposals to impeach Justices like Brett Kavanaugh for that contingency.