Freedom Line Blog

In one of my other incarnations I teach public policy and legal interpretation at Pepperdine University’s School of Public Policy.  One of the cases we discuss every fall is Massachusetts v. EPA, a controversial standing decision by the Supreme Court that allowed the Bay State and others to bend the rules for suing the EPA for not regulating greenhouse gases.

This was in the halcyon days of the George W. Bush Administration when conservative EPA appointees had the temerity to point out that the Clean Air Act gave the agency no authorization to interpret carbon dioxide as pollution to be regulated.

No bother, said then-Justice John Paul Stevens in his majority opinion that included Justice Anthony Kennedy, author of last week’s immigration decision in Arizona v. U.S.  In the EPA case, Justice Stevens said that states like Massachusetts are due “special solicitude” when litigating at the federal bar, especially when their sovereignty is threatened by eroding coastlines thanks to future speculated rises in sea levels from global warming.  (I’ll bet Arizona Governor Jan Brewer would have liked Justice Kennedy to remember her state’s “special solicitude” regarding the integrity of its borders.)

Now we’ve got a different Administration and a different outcome.  The Obama EPA was all too happy to make the carbon dioxide endangerment finding the Supreme Court made possible.  The energy industry sued claiming EPA lacked jurisdiction, and last Tuesday the D.C. Court of Appeals upheld EPA’s unenumerated power to redefine pollution.

Unless the Supreme Court intervenes and overrules the D.C. Circuit, the fight will now move to how EPA uses its newfound regulatory power.  What are the likely outcomes?  The New York Times summarizes two of the main arguments:

“This decision ensures that a regulatory approach to emissions cuts will take place, whether or not Congress acts legislatively,” said Paul Bledsoe, a senior adviser at the Bipartisan Policy Center, a nonprofit group that specializes in energy and environmental issues. “The question is, does the industry push Congress to develop a more efficient, less costly approach now that regulation is inevitable?”

But Representative Fred Upton, the Michigan Republican who is chairman of the House Energy and Commerce Committee, said that Congress’s refusal to approve greenhouse gas limits constituted a decision and that lawmakers should act now to reverse the E.P.A. emissions rules. Carbon regulation “threatens to drive energy prices higher, destroy jobs and hamstring our economic recovery,” he said.

So, an overweening federal agency emboldened by implied powers of regulatory control is going to act “whether or not Congress acts legislatively”?  My sympathies are with Chairman Upton’s point that no decision is a decision, but that’s clearly not a roadblock to activist bureaucrats with case precedent on their side.  It’s time for Congress to get back in the game and rein in the administrative state with clear and direct commands.  They know how to write those kinds of statutes.  It’s time they did more of it.

It’s the first Monday in October which means that the Supreme Court of the United States (SCOTUS) is back in session.  Uber-liberal constitutional law expert Erwin Chemerinsky is not celebrating the occasion.  Instead, he bemoans the conservative ‘take-over’ of the court and sites as evidence the fact that Republican presidents from Nixon to Bush II made a total of 12 appointments to SCOTUS while only two Democrat nominees made it onto the bench.  (Bill Clinton appointed Ruth Bader Ginsburg and Stephen Breyer, while Jimmy Carter was faced with no vacancies during his term.)

Chemerinsky, the dean of UC Irvine’s law school, singles out 4 of the 12 appointments (John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) as proof of the conservative ascendency.  But for conservatives a success rate of 33% is hardly a victory; especially when considering that both of President Barack Obama’s SCOTUS appointments replaced Republican nominees, yet didn’t alter the conservative-liberal voting patterns.  Gerald Ford appointed John Paul Stevens, a man who ended his tenure as the leader o the court’s liberal bloc.  Bush I appointed David Souter, a justice who voted in lock-step with Stevens and the court’s other liberals.

True, Bush I gave us Thomas, and Reagan hit a home run with Scalia, but Reagan also put soul-crushing moderates like Sandra Day O’Connor and Anthony Kennedy on the bench; two people who repeatedly frustrated conservatives on issues across the political spectrum.  Ironically, at least to some, is the SCOTUS legacy of Bush II who made solid conservative appointments with Roberts and Alito.  That these two often team with Thomas and Scalia (and manage to cajole Kennedy to heed his better angels) is more the result of a historical accident than a carefully executed strategy.

Imagine the kind of country we could be enjoying had Republican presidents from Nixon to Bush I had a conservative justice success rate of 66% rather than 33%.  As it is, since at least the Eisenhower Administration (Earl Warren, William Brennan) liberals like Chemerinsky have benefited handsomely from liberal appointments by supposedly conservative GOP presidents.

How interesting that the Age of Obama is bringing about the demise of “centrist” Democrats.  The flurry of retirements from the House of Representatives this session come almost completely from the South and Midwest, once the cradle of Democratic congressional leaders.  Now, members like Marion Berry (D-AR) and Bart Stupak (D-MI) are retiring from politics after years of finding their social conservatism unwelcome in an increasingly secularist Democratic Party.

Many Americans outside Stupak’s congressional district were surprised to find an ardent pro-life Democrat still getting elected to public office.  Even more startling was his stance on ObamaCare: he wants a single-payer system; he just doesn’t want federal funding for abortions.  With his retirement announcement today, America isn’t likely to see another high profile Democrat willing to risk curtailing the growth of leviathan for what amounts to a religious conviction.

Then there is Associate Justice John Paul Stevens.  His retirement, along with former Justice David Souter’s last year, will probably be the last to involve a court member of one party leaving the bench so that a president of the other party can appoint his replacement.  Make no mistake; had Senator John Kerry (D-MA) won the presidency in 2004, neither Souter nor Stevens would have waited this long to leave.

So with Stupak and Stevens exiting Stage Left, there are now two more examples of the sharp, rigid partisanship that President Barack Obama has brought to our politics.  After all the election spin about post-partisanship, the only change he gave us was a historical dividing line between politics as people with ideas, and politics as parties with agendas.

Many Americans unfortunately view elections in too limited a perspective, assuming that mistakes can simply be reversed at the next election cycle.  Today’s announcement by United States Supreme Court Justice John Paul Stevens that he will retire reminds us that elections can be far more consequential and long-lasting than many voters assume.

Less than halfway into his tenure, Barack Obama will already have nominated almost one-quarter of the Supreme Court.  That is an enormous impact for the most radical President in American history.  Last year, his “empathetic” nominee Sonya Sotomayor saw her most notable ruling, the New Haven firefighter “affirmative action” decision, embarrassingly reversed by the Supreme Court in the midst of her confirmation process.  Yet she was nevertheless confirmed.  The fact that these are lifetime appointments makes this fact all the more alarming.

Our collective task in the upcoming months is to ensure that:  (1) the dangerous judicial philosophy of Obama’s nominee is fairly and thoroughly illuminated, (2) that we stand up for the principles of individual freedom and Constitutional fidelity just as strongly as we stood against ObamaCare in nearly stopping it despite overwhelming Democrat majorities, and (3) that Americans’ eyes are opened to the way in which Obama seeks to alter America for decades into the future.  This important battle now begins.

If the rumors are true and Justices John Paul Stevens and Ruth Bader Ginsberg wind up stepping down from the bench in tandem, President Obama could throw a bone to Republicans and nominate one of their choices.  That would almost assure both nominees of confirmation.  But since that isn’t likely to happen, it will be interesting to see which Democratic identity group is first in line to claim the seat(s).

But wouldn’t it be nice if interpretive method were the controlling factor?  No matter who is on the current shortlist, it isn’t complete unless it includes Yale law professor Akhil Amar, the prolific author of Originalist constitutional works from a progressive viewpoint.  Though I don’t share all of Amar’s interpretations, I welcome the chance to have a brilliant jurist of the Left that agrees with Justices Scalia and Thomas that constitutional interpretation should begin with the text and its meaning at the time it was ratified.  Already, Amar is the most cited constitutional law scholar of his generation.  It would be nice to see such achievement rewarded with a position where he could put his theories into practice – and do battle with Scalia and Thomas.

Today, the U.S. Supreme Court resumes its 2009-2010 term with a round of two oral arguments.  Though the two cases that pit Alabama v. North Carolina and Briscoe v. Virginia have national legal implications, court watchers are eagerly awaiting other consequential decisions this term.

The fate of the First Amendment and campaign finance reform could be decided as early as tomorrow in Citizens United v. FEC.  The justices reargued the case on September 9, 2009, but the Court has yet to report a decision.  With federal primary elections less than a month away, candidates and First Amendment lawyers seek guidance from the Court as soon as possible.

The best case scenario would be a broad sweeping opinion striking down many of McCain-Feingold’s onerous First Amendment restrictions.

In addition, the spring term ushers in a new round of retirement speculation.  Justice John Paul Stevens is the oldest member of the Court, 89, and has not hired his full slate of clerks for the next Supreme Court term.

This article also mentioned the possible retirement of Justice Antonin Scalia.  Any vacancy would cause political wrangling in the Senate but a Scalia departure, coupled with President Obama’s liberal record on judges, would result in a judicial and political Armageddon unseen since the days of Judge Robert Bork.

Whatever occurs during the conclusion of this Supreme Court term will surely have major implications for individual rights and the future of our Constitution.