Among the Supreme Court’s most lamentable habits is a lack of candor in cases of grave political, economic, and social import.
By “lack of candor,” I don’t mean the shading or the strategic deployment of legal arguments. That comes with the constitutional territory, and we have tolerably efficient social practices—the publicity of judicial opinions, a watchful and disputatious legal profession—to flush out mistakes and misconduct. What I mean is (1) a deliberate judicial attempt to recruit political institutions (Congress, states, lower courts) into bringing about desired social outcomes, coupled with (2) an ex ante maneuver to evade responsibility for an anticipated adverse result.
This form of strategic judicial behavior is a fairly modern invention. Its paradigm is school desegregation litigation, beginning in the late 1960s. Mere non-discrimination, the Court said, is not enough; schools must be integrated in fact, and the vestiges of segregation must be eliminated “root and branch.” But the Court never explained what that might mean, and it repeatedly refused to embrace and in fact rejected the obvious operational standard (racial balance). It left district courts and political institutions to make sense of the commands. When the ensuing discord over busing and balancing threatened to get out of hand and the cases came back to the Court, the justices demurred: This goes too far. That’s not what we meant. It’s someone else’s fault.
One can have a long and hard debate over the Court’s course. (I’m inclined to think that the justices were more clueless than cynical.) However, the experience left the Court with a penchant for strategic blame avoidance, fueled by excessive ambition: It’s our job to prod and nudge political institutions toward social progress. In doing so, though, we justices must leave ourselves an escape hatch that allows us to deny responsibility for bad results, lest we endanger our prestige and our ability to prod again.
Today’s example of this unfortunate strategy is Massachusetts v. EPA (2007); I’ll have another example tomorrow.
Recall the basics, discussed here and here: if EPA makes an “endangerment finding” to the effect that CO2 and other GHGs can be reasonably anticipated to threaten public health or welfare, it must then regulate mobile source emissions and, in turn, stationary source emissions.
Bending every known principle of standing, preemption, statutory construction, and judicial deference, the 5-4 majority in Mass v. EPA held that the petitioners had standing to challenge the EPA’s denial of a petition for rulemaking on endangerment; that GHGs are a “pollutant” under the Clean Air Act; and that in exercising his discretion (“judgment”) under the act, the administrator had impermissibly relied on “policy judgments” (such as regulatory effectiveness and the President’s ability to negotiate international climate treaties). Justice Steven, writing for the majority, then summarizes the holding:
EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change …. We need not and do not reach the question (whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a funding. Cf. [Chevron]. We hold only that EPA must ground its reasons for action or inaction in the statute.
The “we do not reach” modesty is deeply disingenuous. If “policy judgments” are out and scientific uncertainty is the only permissible reason for declining to find endangerment, EPA does have to make that finding. With that, “policy concerns” become impermissible at the downstream regulatory stages as well. Given the mandatory statutory language, the EPA must regulate first mobile and then statutory sources. To assume that Justice Stevens (and for that matter Justice Breyer and the other members of the majority)were unaware of that dynamic is to assume that they do not comprehend the Clean Air Act, which is both uncharitable and against evidence.
All of the parties knew that GHG regulation under the Clean Air Act would be absurd; so did the justices. The point of their holding, to repeat my earlier observation, was to prompt congressional intervention. That nudge and prod, though, entailed a risk that the dysfunctional Congress might fail to respond, in which case the Court would bear responsibility for the ensuing, absurd regulatory cascade. The Court needed an out. It is contained in the laconic holding that EPA must ground its endangerment (in)action “in the statute.”
Does this mean that profound scientific uncertainty is the only permissible reason for refusing to find endangerment? Much of the opinion seems to say so. “In the statute,” however, may open an alternative. Suppose the EPA, on remand, says something like this: “We know that an endangerment finding would entail absurd regulatory consequences, including (at the tail end) an agency re-write of the statute to accommodate it to global emissions. We have to take that into account in the endangerment finding; there is no other place to do it.” Would that position be grounded “in the statute”? Or is it the kind of “policy judgment” that Mass v. EPA explicitly forbids?
There’s no way of telling—and that’s just the point: the calculated ambiguity (central to the cases now pending before the D.C. Circuit) gave the Supreme Court plausible deniability for whatever might happen next. In the event, the EPA is kicking over the regulatory dominoes, industry is screaming bloody murder, the lawyers work overtime, Congress is sitting on its duff, and the author of Mass v. EPA is off playing tennis.
Respectfully, this is no way to run a railroad, let alone a country. The only hope is to cram the D.C. Circuit back into the Supreme Court. Maybe the justices can do better than, “we didn’t say that.”
Duplicity, Part II:
Quotas are ok, so long as you lie about them.