The Supreme Court spent its past term rejecting the rule of law - Ian Millhiser - Vox

The Supreme Court spent its past term rejecting the rule of law - Vox

By Ian Millhiser

The highest Court in the most powerful nation in the world appears to have decided that it only needs to follow the law when it feels like it.

Last December, for example, the Supreme Court handed down a decision that fundamentally alters the Union — giving states sweeping authority to restrict their residents’ constitutional rights.

At least, that’s what happened if you take the Court’s 5-4 decision in Whole Woman’s Health v. Jackson seriously. Jackson involved Texas’s anti-abortion law SB 8, which allowed “any person” who is not employed by the state to sue anyone they suspect of performing an abortion after the sixth week of pregnancy, and to collect a bounty of at least $10,000 from that abortion provider. The Court allowed that law to take effect, even though abortion was still considered a constitutional right at the time.

If you apply the logic from Jackson more broadly, any state could pass a law unleashing such litigious bounty hunters upon people who exercise any constitutional right. Perhaps a state wants to make it illegal to own a gun, or maybe it wants to allow bounty hunters to sue any Black family that sends its child to a predominantly white school — and the federal judiciary will simply stand back and let it happen. Realistically, the Court is unlikely to allow these sorts of attacks. But to spite abortion, the conservative majority was willing to open the door to them.

Jackson, moreover, was only the beginning of a Rumspringa of conservative excess led by the Court’s Republican-appointed majority.

In its just-completed term, the Supreme Court overruled Roe v. Wade, permitting states to ban abortions without having to resort to SB 8-style chicanery. It also overruled a seminal 1971 decision prohibiting the government from advancing one religious belief at the expense of others. It all but neutralized another half-century-old precedent permitting federal law enforcement officers who violate the Constitution to be sued. And the Court’s Republican majority dismantled two decisions protecting criminal defendants who were convicted or sentenced without adequate defense counsel, most likely condemning an innocent man to die in the process.***

History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the AHA and the OAH (July 2022) | AHA

History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the AHA and the OAH (July 2022) | AHA

The American Historical Association and the Organization of American Historians have jointly issued a statement expressing dismay that the US Supreme Court “declined to take seriously the historical claims of our [amicus curiae] brief” in its Dobbs v. Jackson Women’s Health Organization decision. “Instead, the court adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than thirty years. … These misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future. The court’s decision erodes fundamental rights and has the potential to exacerbate historic injustices and deepen inequalities in our country.”

To date, 16 organizations have signed onto the statement.

Download the statement as a PDF.

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History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the American Historical Association and the Organization of American Historians

In September 2021, the American Historical Association and the Organization of American Historians submitted an amicus curiae brief to the US Supreme Court presenting the relevant history to the Dobbs v. Jackson Women’s Health Organization case. We are dismayed that the court declined to take seriously the historical claims of our brief. Instead, the court adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years. The opinion inadequately represents the history of the common law, the significance of quickening in state law and practice in the United States, and the 19th-century forces that turned early abortion into a crime.

Historians might note that the court’s majority opinion refers to “history” 67 times, claiming that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” Our brief shows plentiful evidence, however, of the long legal tradition, extending from the common law to the mid-1800s (and far longer in some American states, including Mississippi), of tolerating termination of pregnancy before occurrence of “quickening,” the time when a woman first felt fetal movement. The majority of the court dismisses that reality because it was eventually—although quite gradually—superseded by criminalization. In so doing the court denies the strong presence in US “history and traditions” at least from the Revolution to the Civil War of women’s ability to terminate pregnancy before the third to fourth month without intervention by the state.

These misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future. The court’s decision erodes fundamental rights and has the potential to exacerbate historic injustices and deepen inequalities in our country. We expect that historians will continue to correct the court’s misinterpretation about the history of legalized abortion in the US in their own research, teaching, and public speaking, while also addressing the multifaceted dilemmas presented by this decision.

The OAH and AHA consider it imperative that historical evidence and argument be presented according to high standards of historical scholarship. The court’s majority opinion in Dobbs v. Jackson does not meet those standards and has therefore established a flawed and troubling precedent.

The following organizations have signed onto this statement:

American Society for Environmental History
American Society for Theatre Research
African American Intellectual History Society
Association for the Study of African American Life and History
Berkshire Conference of Women Historians
Business History Conference
College Art Association
German Studies Association
Immigration and Ethnic History Society
National Women’s Studies Association
Radical History Review
Shakespeare Association of America
Society for the Study of Early Modern Women and Gender
Society for US Intellectual History
Urban History Association
Western History Association

Vermeule: WVA v. EPA is a specious attack on the Clean Air Act - The Washington Post

"West Virginia v. EPA illustrates that every last methodological tenet professed by the [conservative legal]movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters."

Adrian Vermeule is a brilliant and notorious Harvard Law Professor.  As I observed a few months ago in a review of his new book Common Good Constitutionalism  Vermeule will confound both progressives and conservatives.  This is conservatives' turn in the dock.  A co-author with Cass Sunstein of Law and Leviathan, Vermeule unlike other conservatives  defends the administrative state that began with the New Deal's "alphabet agencies".   He rejects the purportedly "originalist" and "textualist" rationales that mask a determination to drastically reduce the role of government. - GWC

There is no conservative legal movement - The Washington Post

By Adrian Vermeule (Harvard Law School)

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.”

Commentators rushed to discuss the significance of West Virginia v. EPA for the conservative legal movement, to which they assumed the justices in the majority belong, perhaps because the court limited abortion rights and strengthened gun rights in the same term. But that framing rests on an error: In reality, as this case makes clear, there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results. West Virginia v. EPA illustrates that every last methodological tenet professed by the movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters.

The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods for interpreting legal texts. Conservative jurisprudence — again, as advertised — has four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and lauded in the opinions of conservative justices.

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SCOTUS: Paving The Road to Slaughter with Good Intentions

 Today in Highland Park, Illinois a miscreant shot from a rooftop into a July 4 parade crowd.  Six dead and dozens wounded.  Twenty-two year old “Bobby” E. Crimo III had no need for a gun.  Yet he had a legally acquired assault rifle which he used with deadly effect, killing six at current count and injuring dozens.

But last month the Supreme Court, 6-3, voided a New York law requiring demonstration of special need to buy a handgun.  But since yesterday's killer  used a high powered semi-automatic weapon of war, critics of Second Amendment rights may find themselves the objects of Samuel Alito's scorn.  In New York State Rifle Alito wrote in a concurring opinion:

Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years?  Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.

Well, to me the fact that Crimo could do more damage with an assault rifle is not a reason to void New York's century old gun control laws. To me it is reason to extend them, not gut them.  But then again I think that judges should consider more than the crystalline logic of the rules which they themselves  have created.

The measures proposed as somehow within reach are almost token, though it is possible that the latest homicidal maniac would have been tripped up by the red flag provisions of the pending Senate compromise.   Once we recognize that half of gun deaths are suicides, and that there are more guns than people thoughts should turn to drastic measures, not lesser. Chief among them should be the outlawing of semi-automatic weapons like the trendy AR 15, but most importantly a massive nationwide gun buyback, and rigorous permit system.  But for the latter we will have to expand and pack the Supreme Court like the Republicans have done.

- GWC

NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL., PETITIONERS v. KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [June 23, 2022] 

JUSTICE THOMAS delivered the opinion of the Court. In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home. 

Let’s Not Pretend We’re Keeping Our Promises on Asylum - Megan Stack - The New York Times

The Trump crowds, the Republicans in conventions assembled, chanting USA, USA have no affinity for the words of Emma Lazarus. But it's not just them.  We have admitted favored groups -mostly European,  But that sentiment has largely faded.  The late great historian of Europe Tony Judt in his masterful Post-War described the massive relocations of ethnic groups after WWII ended.  The Volga Germans were uprooted after centuries on the Volga; Jews who survived history's most brutal and systematic extermination were not welcomed in the lands of their birth - mainly Germany and Poland but were directed  to replace the Palestinians in the Holy Land.

In 1951 the United Nations adopted the Convention Relating to the Status of Refugees - which we have yet to sign.  But the Refugee Act of 1980 at 8 USC 1158 finally adopted the Convention's approach.  It says: 8 USC 1101 (42).

A “refugee” is any person who is outside his or her country of nationality (or, if stateless, outside the country of last habitual residence) and is unable or unwilling to return to that country because of persecution or well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.

Not included are refugees from war or famine. 

We've sent El Salvadorans back, denied entry to Haitians, and dreaded thousands of men, women and children in 'caravans' approaching the southern border.

 = GWC

Opinion | Let’s Not Pretend We’re Keeping Our Promises on Asylum - The New York Times

By Megan K. Stack [Fellow, George Washington University School of Media and Public Affairs]

In this restive age of unprecedented human displacement, 100 million people have fled disaster and oppression to try their luck in a world that’s increasingly tired of dealing with them.

The high-minded international agreements that were guiltily drafted after World War II to protect refugees and asylum seekers have been steadily hollowed out by the very same wealthy nations that consider themselves standard bearers of human rights.

The United States has been at the vanguard of this undoing. The government is well aware of its international treaty obligations: The pleas of foreigners who arrive on our territory seeking protection from persecution are supposed to be heard. Asylum seekers should be treated as potential refugees until their cases have been decided. It is illegal for governments to force people back to countries where they have a reasonable fear of persecution.

***

Generations of schoolkids learned the words of Emma Lazarus: “Give me your tired, your poor … The wretched refuse of your teeming shore.” It was a demand, not a leery acceptance. She did not write, Oh, OK, if we must, but just a few. We told ourselves that story, and maybe it made us a little better, even if it wasn’t true.

What we’re really talking about — beyond the laws and boats, the checkpoints and caravans — is the collapse of an idealism that has grown steadily less realistic. At some point, it seems, demand grew so fast it outpaced our good intentions, and we stopped trying.

Let’s at least stop being disingenuous. Let’s admit that our asylum process has become a myth and that we are the most flagrant undoers of our own ideals. We should expand legal pathways to immigration, raise the ceilings, accept our fair share of refugees, hear the cases, keep our word. We should go back to trying, which was ugly and imperfect but still gave some people a fair shake.

Or, if we can’t, we should state frankly our reasons for dismantling the asylum system and withdraw our promises. That would crush a lot of hopes, including mine, but at least we’d know who we are.

Chevron’s Latest Step, by Nicholas Bednar - Yale Journal on Regulation

Chevron’s Latest Step, by Nicholas Bednar - Yale Journal on Regulation

In West Virginia v. EPA, the Supreme Court held that the emission limits adopted by the Environmental Protection Agency (EPA) in the Clean Power Plan exceeded the agency’s authority, because the Clean Air Act did not clearly authorize the agency to “restructure the American energy market.” Ordinarily, courts would review the interpretive issue under the Chevron standard. Instead, the Court’s majority invoked the major-questions doctrine. As with other recent Supreme Court opinions, the majority did not even cite Chevron.The opinion has raised a flurry of questions in the administrative-law community. Is Chevron still alive? What constitutes a “major question”? How does the major-questions doctrine fit into Chevron’s framework—if it does at all?

On Twitter, I attempted to answer this last question using the following flowchart. My goal: Determine how a lower court would apply the Chevron doctrine in light of West Virginia v. EPA.  

Opinion | A Supreme Court gerrymandering case could further undermine democracy - The Washington Post

Opinion | A Supreme Court gerrymandering case could further undermine democracy - The Washington Post

by Leah Litman, Kate Shaw and Carolyn Shapiro

**

[In] Moore v. Harper, the justices will review a North Carolina Supreme Court decision holding that the state constitution prohibits extreme partisan gerrymanders. The Supreme Court’s choice to take the case could presage yet another decision that will undermine democracy, by prohibiting other government institutions — here, state courts — from protecting voting rights and democracy.

***The issue in Harper is whether the federal Constitution prevents a state court from determining whether the state legislature violated the state constitution in setting rules for federal elections. The petitioners — Republican legislative leaders — are asking the court to hold that it is unconstitutional for state courts and state constitutions to protect federal voting rights.

This argument rests on a blinkered reading of two clauses in the Constitution that assign to the legislature of each state the job of identifying the “Manner” of appointing presidential electors and the “Times, Places and Manner” of congressional elections. Neither clause suggests that state legislatures can violate their own constitutions.Chief Justice William H. Rehnquist suggested this far-fetched theory in a concurrence in Bush v. Gore. But the theory failed to command a majority, and it was largely ignored for almost two decades.

But in the 2020 election litigation, Justices Neil M. Gorsuch and Brett M. Kavanaugh, in addition to Justices Samuel A. Alito Jr. and Clarence Thomas, expressed sympathy for the theory.

Since 2020, a mountain of scholarship has emerged thoroughly debunking the ISLT. Its historical bases are nonexistent. The Founders understood well that states could choose to have constitutions that constrain state legislatures, and that view has held sway in practice and law ever since. And state executive officials have also enjoyed considerable discretion to operate federal elections since the founding.

The extreme danger of the Supreme Court’s latest voting case.//Rick Hasen //SLATE

The extreme danger of the Supreme Court’s latest voting case.

By Rick Hasen (UC Irvine Law)

The Supreme Court on Thursday agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion in congressional and presidential elections.

The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution—Article I, Section 4 as to congressional elections and Article II as to presidential elections—give state “legislatures” the power to set certain rules (in the Article I, Section 4 context, subject to congressional override). In cases such as Smiley v. Holm, the Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. As recently as 2015, in Arizona Independent Redistricting Commission v. Arizona Legislature, the Supreme Court held that the voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. The majority saw voters passing legislation via initiative as part of that legislative process.

Analysis: Supreme Court in EPA Case, Like the OSHA Case Earlier This Term, Shows The Court is Not Really “Textualists” and Applies Statutory Canons Reflecting Its Values | Election Law Blog

Analysis: Supreme Court in EPA Case, Like the OSHA Case Earlier This Term, Shows The Court is Not Really “Textualists” and Applies Statutory Canons Reflecting Its Values | Election Law Blog

By RICK HASEN (University of California at Irvine)

Dissenting today in West Virginia v. EPA, Justice Kagan writes: “Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it.”

This term surely proves the point. The “normal” mode of textual analysis we see from Justices like Justice Gorsuch begin with the words of a statute, often read in the context of surrounding text, looking to dictionaries and other tools of ordinary meaning. And the approach avoids relying on legislative history as unreliable or even unconstitutional. The larger debate over textualism and the flaws in it are well covered in the late Judge Bob Katzmann’s excellent book, “Judging Statutes.”

But put aside that debate for today and take textualism on its own terms. In today’s EPA case, like the Supreme Court’s earlier ruling saying OSHA had no authority to require covid vaccines in larger workplaces, show that the conservative Justices are fair weathered textualists. In both cases, they don’t turn to dictionaries to figure out if the relevant agency has the authority from Congress to take on key issues in its area (EPA to deal with climate change threats from greenhouse gases and in OSHA the authority to regulate workplace safety).

Instead, the Justices pull a rabbit out of a hat and avoid the words of the statute almost in their entirety. How do to so? Textualists have adopted certain “canons” or rules of thumb to decide cases. Many of these canons are about how to read punctuation and grammar (like the last antecedent rule). But there are also “substantive canons” that put a thumb on the scale when it comes to interpreting cases. A rule for example that says to read criminal statutes leniently to favor criminal defendants is one example, because of constitutional protections for criminal defendants. Justice Scalia, who claimed to be an avid textualist, said that such canons cause whole a lot of trouble for an honest textualist. (I wrote a lot about this in a chapter in my book on Justice Scalia, The Justice of Contradictions.)

Today, as in the OSHA case, the Court pulls a rabbit out of a hat using what it now calls the “major questions doctrine.” It says that on big issues, the presumption is—even if Congress’s language is broad and wide as in these two cases—that Congress did NOT delegate the power to the agency to regulate a big issue. Congress has to be really clear and specific — again, even if as in the EPA and OSHA cases, there is a broad general grant of authority.

Why this substantive canon? It comes from the value judgments of the conservative Justices and from nowhere else. These justices are skeptical of broad administrative power, and of executive power generally. These justices know that in a closely divided Congress, its rulings like this will stymie legislative action on issues like climate change or preventing the spread of Covid. And they are fine with that.

Explainer: How the conservative Supreme Court is reshaping U.S. law | Reuters

Explainer: How the conservative Supreme Court is reshaping U.S. law | Reuters

By Lawrence Hurley and Andrew Chung

WASHINGTON, July 1 (Reuters) - The U.S. Supreme Court's most consequential term in decades, with blockbuster rulings on abortion, guns, religion and climate change policy, illustrated how its expanded conservative majority is willing to boldly use its power with far-reaching impacts on American society. read more

Democratic President Joe Biden's appointment of Justice Ketanji Brown Jackson, sworn in on Thursday to replace retiring fellow liberal Justice Stephen Breyer on Thursday, does not change the court's ideological balance, with a 6-3 conservative majority.The majority's assertiveness could continue in a number of major cases in the court's next term, which begins in October.

Here is a look at what the court did in its latest term, which ended on Thursday, and where it is headed.

ABORTION AND PERSONAL FREEDOM

In the June 24 abortion ruling, the court overturned the landmark 1973 Roe v. Wade decision that legalized the procedure nationwide, giving conservative activists a long-awaited victory. The court returned abortion regulation to the states. The decision immediately led to conservative-leaning states seeking to enforce total bans and other abortion restrictions that had previously been blocked by lower courts. read moreSome conservatives would like to go further and ban abortion nationwide, either through an act of Congress or via a Supreme Court decision, although it remains to be seen if the justices would be receptive to such an approach.

Conservative Justice Clarence Thomas caused alarm on the left by writing in his concurring opinion that the court should consider overturning other precedents going back decades protecting individual freedoms including gay marriage, same-sex intimacy and access to birth control. It is unclear if other justices would sign on to such a move.

GUNS

In another landmark ruling expanding gun rights, the court on June 23 found that the U.S. Constitution protects an individual's right to carry a handgun in public.

The ruling, which invalidated New York's limits on that practice as a violation of the Constitution's Second Amendment right to "keep and bear arms," will have the biggest impact in states and localities with stricter gun control measures in place. read more

Legal scholars predict that other gun restrictions will fall given that the ruling also declared that, going forward, lower courts must assess the constitutionality of gun restrictions by comparing them to those traditionally adopted throughout U.S. history.

CLIMATE CHANGE AND FEDERAL REGULATION

The Supreme Court on Thursday curbed the Environmental Protection Agency's ability to restrict greenhouse gas emissions from power plants in a ruling that limits federal agency power. read more

The Supreme Court Is Making Itself the Only Branch That Matters

The Supreme Court Is Making Itself the Only Branch That Matters Balls & Strikes

By Jay Willis

The Supreme Court wrapped its term and headed off on summer vacation this week with a pair of opinions in West Virginia v. Environmental Protection Agency and Biden v. Texas. Together, these cases establish that executive agencies CANNOT do anything meaningful about the climate crisis (or anything else the Republican justices don’t care about), but also, that Donald Trump is NOT an emperor-god-king whose trademark brand of zombified xenophobia will dictate U.S. immigration policy forevermore. 

***Using its authority under the Clean Air Act to set emissions limits using the “best system of emission reduction” available, the EPA under President Barack Obama rolled out a rule known as the Clean Power Plan in 2015. This rule, among other things, required fossil fuels-burning power plants to do their part to reduce emissions by cutting production, investing in renewable energy, or offsetting their pollution via cap-and-trade. 

Alas, the Clean Power Plan never took effect: The Supreme Court stayed the rule in 2016, and the Trump administration replaced it with a (much weaker, of course) rule of its own. This rule also never took effect: In January 2021, a federal appeals court decided that Trump’s rule and his recission of the Clean Power Plan were unlawful, too. When President Joe Biden took office, he quite sensibly concluded that he wanted no part of this mess. His administration is working on its own emissions-related rule, hopeful that it can find some kind of Goldilocks approach to climate regulation that judges won’t immediately stuff in the trash.

The Court’s decision in West Virginia all but guarantees that judges will do exactly that. Writing for the six conservatives, Chief Justice John Roberts concludes that Congress simply could not have intended to grant this much power to the EPA. His support for this assertion is, basically, vibes: that even if the Clean Power Plan is a “system” for reducing emissions under any reasonable definition of the word “system,” surely it isn’t the type of system Congress had in mind when it wrote the Clean Air Act. The text means what it says, in other words, except where Roberts and company think it should mean something else.

The opinion speaks glowingly of the “major questions” doctrine, which purports to require clear evidence of congressional intent when agencies exercise power over issues of “vast economic and political significance,” or that generate “earnest and profound debate,” or that intrude on a “particular domain of state law.” This is a fancy way of saying that going forward, whenever an agency tries to do anything important, only those actions expressly approved by nine Supreme Court justices will pass legal muster. Every time Roberts begins a sentence with “we find” or “we expect,” he is speaking for a very specific “we”: six Republicans for whom the phrase “climate change” is the punchline to their favorite cocktail party jokes.

As usual, the conservatives attempt to justify their position by appealing to democratic principles: If Congress really wants something like cap-and-trade to become law, well, there’s a process for doing that. But as the liberals point out in dissent, the ability to infuse statutes with some flexibility is an essential tool for Congress, because a very important part of Congress’s job is to write laws that are workable both in the present and also in the future. Hamstringing lawmakers by taking away this safety blanket is bad. Making a bunch of unelected judges the arbiters of what rules, as Justice Elena Kagan puts it, count as “too new and too big a deal for Congress to have authorized” is even worse. 

That the Court is consolidating power in itself at a moment when reactionaries have a stranglehold on the Court’s power is not a coincidence. As I’ve written before, the point of the conservative legal movement’s push to control the judiciary is to enact an unpopular agenda by recasting it as the objectively correct product of a neutral legal process. West Virginia is shaping up to be among the movement’s most consequential accomplishments, further collapsing the three-ring government structure of Schoolhouse Rock fame into one: A polarized, paralyzed Congress, as everyone including Roberts knows, can’t do anything anymore, which leaves most of the work of policymaking to the executive branch and the modern administrative state. By creating for itself a de facto veto over any policy it doesn’t like, the West Virginia Court has made itself the only branch that matters. 

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Cassidy Hutchinson’s Testimony Changed Our Minds about Indicting Donald Trump - Lawfare

Cassidy Hutchinson’s Testimony Changed Our Minds about Indicting Donald Trump - Lawfare

By Alan Rozenshtein and Jed Shugerman

Until Tuesday, we had both publicly stated that the Department of Justice had insufficient evidence to indict former President Trump for his conduct on January 6. Our conclusion, which we each came to independently, was largely grounded in First Amendment concerns about criminalizing purely political speech.

But Tuesday’s explosive testimony from Cassidy Hutchinson, a former aide to Trump’s Chief of Staff Mark Meadows, changed our minds. In particular, Hutchinson testified to hearing Trump order that the magnetometers (metal detectors) used to keep armed people away from the president be removed: “I don’t fucking care that they have weapons, they’re not here to hurt me. They’re not here to hurt me. Take the fucking mags [magnetometers] away. Let my people in. They can march to the Capitol from here; let the people in and take the mags away.” 

Admittedly, Hutchinson is only one witness, and it is true that some of her testimony would, in the context of a criminal trial, constitute hearsay. But Hutchinson—unlike many of her detractors who have contested certain details of her testimony—testified under oath and, contrary to the sneering commentary of the House Judiciary Committee GOP Twitter account, not all of Hutchinson’s second-hand remarks were introduced to establish the truth of the matter asserted. Even much of that portion of her testimony that did constitute hearsay might still be admissible under the relevant evidentiary rules. 

These utterances by Trump (as alleged by Hutchison) were not political speech. They serve as additional proof of intent and context, and—crucially—a material act to increase the likelihood of violence. This easily distinguishes Trump’s speech at the rally from other kinds of core political speech that should never be criminalized.

Insufficient evidence before Tuesday’s testimony

Let’s start with what was publicly known of Trump’s speech at the “Stop the Steal” rally at the White House Ellipse. Trump told the crowd, "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard." Then he added:

Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we're going to walk down, and I'll be there with you, we're going to walk down… Because you'll never take back our country with weakness. You have to show strength and you have to be strong … And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore … So we're going to, we're going to walk down Pennsylvania Avenue ... And we're going to the Capitol, and we're going to try and give … give our Republicans … the kind of pride and boldness that they need to take back our country.

Hindsight is 20/20, and before Tuesday, we both believed that hindsight bias was causing too many commentators to leap from Trump’s remarks to the violence that followed, and that a criminal prosecution of the speech itself would run afoul of foundational principles of First Amendment law. In particular, we were skeptical that Trump’s speech would satisfy the stringent requirement of Brandenburg v. Ohio, the landmark case in which the Supreme Court held that the government could only criminalize speech advocating unlawful action if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Although Trump’s speech was undoubtedly a but-for cause of the violence, the content of the speech itself is hard to distinguish from other politicians or activists who may call on supporters to “fight like hell” or “go march to the Capitol” or any other government building for a political purpose.

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West Virginia v. EPA: what's really at stake.//Blake Emerson //SLATE

West Virginia v. EPA: what's really at stake.//SLATE

By Blake  Emerson

In yet another major blow to democratic constitutionalism, the Supreme Court ruled in West Virginia v. EPA that the Clean Air Act does not give EPA authority to regulate the power grid as a whole. The decision will likely limit the EPA’s authority to address climate change across the board. But the issue is even broader. The opinion undermines the federal regulatory state that Congress has established—with the court’s blessing—over the past 200 years. Using a legal rule of its own invention that defies the intent of Congress, the court has struck at the heart of government agencies’ ability to protect the public.

Together with the court’s elimination of the constitutional right to abortion, restriction of gun regulations, and expansion of religious authority, a clear picture is emerging: The people have less power now to create a safe and healthy society. Instead, the court has consolidated power in its own hands to the benefit of factional economic and cultural interests.

West Virginia v. EPA strips the EPA of significant authority to address climate change. The Supreme Court itself practically required the EPA to take action against climate change during the second Bush administration. Years later, the Obama administration’s EPA issued a groundbreaking Clean Power Plan to do so. The CPP required states to submit plans to reduce greenhouse gas emissions through a combination of burning coal more cleanly, shifting from coal to natural gas, and shifting power generation from fossil fuels like coal and natural gas to renewable sources like wind and solar. Thus, it provided for both regulations at particular power plants and at the level of the electric grid as a whole.

West Virginia—a coal-producing state—and other parties sued to stop the rule from going into effect. In an unprecedented move, the Supreme Court stayed the rule while appeals were pending toward the end of the Obama administration. The Trump administration’s EPA then replaced the Clean Power Plan with its Affordable Clean Energy rule. ACE was extremely weak by design: It did away with CPP’s grid-level improvements, claiming that the Clean Air Act did not permit them. The American Lung Association and other parties challenged this rule, and the D.C. Circuit struck it down.

West Virginia v. EPA emerged as an appeal from these challenges. 

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