The long conservative takeover of the Supreme Court is getting another round of scrutiny in light of new allegations against Justice Brett M. Kavanaugh. Though they are inadequately sourced, the New York Times’s latest reporting has also raised legitimate new doubts about the shallow FBI inquiry into his background that helped smooth his confirmation.
This, along with the pocketing of Neil M. Gorsuch’s seat, helped President Trump entrench a further-rightward shift on the high court — albeit one overshadowed by questions about its legitimacy.
But beyond the ugly tactics that produced this particular majority lies a looming question: What will the long-term consequences of this takeover be?
A new study offers an alarming answer to that question. It concludes that even if Democrats win the White House and Congress, the high court will likely strike down much of what they do to address the climate change crisis, even as the window for action is closing, perhaps exacerbating the threat of civilizational catastrophe.
The study represents a serious effort — one undertaken by two well-known academics — to develop a realistic projection of how the conservative justices might rule on climate legislation. As such, it may also fuel discussion among the Democratic presidential candidates about their various proposals to expand the court.
“Climate change legislation,” the report starkly concludes, is “unlikely to survive judicial review,” at a time when “leading scientists have concluded that only twelve years remain to avoid planetary climate change catastrophe.”
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.
“There are ample implausible doctrines that conservative justices will invoke,” Aaron Belkin, a political science professor at San Francisco State University who co-wrote the study, told me. The other author is Samuel Moyn, a professor at Yale Law School.
The study, which is sponsored by Take Back The Court — a group advocating court expansion — details numerous such ways this might happen:
Construe agency authority narrowly. The study details the conservative justices’ history of very narrowly construing the discretion of agencies to interpret statutes, as part of a broader hostility to agency authority.
Kavanaugh and Gorsuch have a history of hostility to Chevron deference, the idea that courts should defer to agencies’ interpretation of statutes, the study notes, adding that Kavanaugh has implausibly construed agency authority too narrowly in striking down climate regulations as a circuit-court judge.
The key thing noted by the study is that this is one way the justices might strike down future climate legislation.
Imagine that a Democratic president and Congress were to enact some sort of Green New Deal-oriented program that includes extensive investments in green energy technologies, and new regulations on greenhouse gas emissions by both industry and the agricultural sector.
Such efforts would be implemented by agencies such as the Environmental Protection Agency and the Agriculture Department. No matter how clearly the statutory commands to these agencies are written, the study argues, “a determined Court can undermine attempts to realize the legislation by reading agencies’ statutory authority extremely narrowly.”
Construe regulations as violations of the takings clause. The study posits that the conservative justices could invalidate climate legislation through a creative reading of the Fifth Amendment’s prohibition against taking private property for “public use” without “just compensation.”
For instance, the study notes, the court might narrowly construe what counts as a “public purpose,” as previous conservative justices have suggested in dissents. In this scenario, the court might strike down legislation dramatically restricting oil drilling as an unconstitutional “taking” from a corporation engaged in it.
“Though oil companies arguably are implicated in wreaking affirmative harm on society,” the study concludes, the court might simply deny that the policy in question would actually serve a public purpose. How? By concluding that it “would not remedy the affirmative harm that climate change poses to society,” or worse, that “climate change does not pose a sufficient harm in the first place.”
Another possibility is that the conservative justices might be animated by a newly emerging doctrine called “regulatory takings.” This doctrine reads not just eminent domain but also certain regulatory acts as “takings” requiring compensation.
Imagine a law that requires new levels of monitoring on fossil-fuel drilling sites to keep extractions below a certain threshold. The study posits that the justices might allow that the regulation does serve a public purpose, so it can stand, but also that it’s still a “taking” and thus requires compensation.
“Requiring the government to pay to regulate could pose problems for the fiscal feasibility of climate change legislation,” the study concludes.
Other possibilities suggested by the study: Congress’s authority to regulate interstate commerce underpins many environmental laws, but the conservative court could invalidate, say, new regulations affecting natural resources by arguing that the commerce clause does not authorize intrusions into regulatory authority typically reserved to the states.
Or the conservative court could invalidate, for instance, new regulatory standards created for states by concluding that the mechanism to do so runs afoul of an “anti-commandeering doctrine” developed by conservatives to limit the federal government’s ability to exert influence over state governments.
The bottom line subtext of the study: In response to the climate crisis, the federal government is going to have to exercise its powers to a much greater degree — and a major collision between this and the conservative court majority is inevitable.
“The next president needs to explain how they will protect their climate proposals from a partisan court,” Belkin told me. “It’s not enough to have big, bold ideas, or even to enact those big, bold ideas.”
This is likely to lead to more discussion of various proposals for expanding the courts in response to the norm-shredding nature of the conservative takeover of it — a topic for another column.
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.
“The court will clearly not allow Congress to solve problems,” Belkin told me. “The country is facing a range of policy emergencies.”
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