Memorable moments from this SCOTUS term

[NolaAuTiger 3,295]

For the past couple of years, I have tried to make it a habit of reading every SCOTUS decision as they are handed down. At the end of any Court term, I am always steered back to at least one opinion, concurrence, or dissent that stands apart from all the others because of how it was written (not necessarily because of legal issue at play). 

As I look back at the most recent term, there are two lone dissents that I cannot forget. To be sure, neither case was "headline" worthy (what 8-1 decision ever is?). What makes the dissents memorable, in my view, is the clarity and force with which they were written. Here are snippets from both-

Justice Sotomayor's dissent in U.S. v. Madero. Here was the issue as framed by the Court:  "For various historical and policy reasons, including local autonomy, Congress has not required residents of Puerto Rico to pay most federal income, gift, estate, and excise taxes. Congress has likewise not extended certain federal benefits programs to residents of Puerto Rico. The question presented is whether the equal-protection component of the Fifth Amendment’s Due Process Clause requires Congress to make Supplemental Security Income benefits available to residents of Puerto Rico to the same extent that Congress makes those benefits available to residents of the States. In light of the text of the Constitution, longstanding historical practice, and this Court’s precedents, the answer is no."

Sotomayor disagreed. In her view, "there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others. To hold otherwise, as the Court does, is irrational and antithetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution. . . . Equal treatment of citizens should not be left to the vagaries of the political process. Because residents of Puerto Rico do not have voting representation in Congress, they cannot rely on their elected representatives to remedy the punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment. The Constitution permits Congress to “make all needful Rules and Regulations” respecting the Territories. Art. IV, §3, cl. 2. That constitutional command does not permit Congress to ignore the equally weighty constitutional command that it treat United States citizens equally."

Justice Thomas' dissent in Ramirez v. Collier. The issue here involved a death-sentenced individual's request for a preliminary injunction - in other words, if X happens, then I must be allowed Y. "A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari. . . . We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion."

Justice Thomas dissented. Consider how he recasts the facts. "Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25. Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas. This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

The saga of Ramirez’s crimes and the ensuing litigation warrants a fuller retelling than the majority provides.

On the night of July 19, 2004, John Henry Ramirez, Christina Chavez, and Angela Rodriguez ran out of drug money. Wanting more, they drove through Corpus Christi, Texas, in search of victims to rob. Ramirez v. Stephens, 641 Fed. Appx. 312, 314 (CA5 2016). Pablo Castro, a father of nine, was working the night shift at the Times Market convenience store, as he had for years. With midnight approaching, he and another employee prepared to close up. Castro collected the trash and went outside to put it in the dumpster.

Ramirez and his confederates found Castro in the convenience store’s parking lot. Wielding a serrated knife, Ramirez slashed and stabbed Castro 29 times. Castro suffered eight wounds on his forearm and hands as he struggled to defend himself. He suffered many more wounds to the head, neck, shoulders, and back. After Castro fell to the ground, the attackers rifled through his pockets, collected $1.25, and drove away.

Two employees at a nearby store witnessed the attack. When they reached Castro, he was still conscious. He had suffered a deep gash across his throat and was spitting up blood. Castro eventually lost consciousness and, by the time first responders arrived, he had stopped breathing. He died in the parking lot.

Having netted only $1.25 from Castro, Ramirez and the others pursued new targets. Within minutes of murdering Castro, they found April Metting waiting in the drivethrough of a Whataburger, with her 2-year-old son in the back seat. While Chavez distracted Metting, Ramirez crept up to the driver’s side window, grabbed Metting by the back of her neck, and held the now blood-stained serrated knife to her throat. Metting implored the assailants not to harm her in front of her child. Ramirez ordered: “‘Shut up, bitch.’” Metting surrendered her purse, and Ramirez let her go. The assailants again fled in their van.

They next targeted Ruby Pena Hinojosa, who was sitting in the drive-through line of a different Whataburger. As before, one of the women distracted Hinojosa while Ramirez approached her driver-side window to put the knife to her neck. But Hinojosa was able to dodge the knife, roll up the window, and back her car away from the assailants, who then departed in their van.

Not long after, responding officers spotted the van and pulled it over. When the officers exited their patrol cruiser, the van sped off. The police pursued, only to lose sight of it. Ramirez, Rodriguez, and Chavez then abandoned the van in an overgrown lot and continued on foot. Id., at *5. Police soon found and arrested Rodriguez and Chavez, but they did not find Ramirez. He fled to Mexico and hid there for over three years before law enforcement apprehended him near the U. S.-Mexican border.

...

Ramirez continued to engineer delay in state court. After a jury convicted him, his case moved to the sentencing phase. Ramirez’s lawyer intended to put on mitigation witnesses. But after one witness, Ramirez instructed his lawyer to call no more. The state court found Ramirez competent and honored his decision. Predictably, he was sentenced to death. Yet, during state habeas proceedings, Ramirez nonetheless brought a claim (among several others) accusing his state trial counsel of ineffective assistance for failing to provide an adequate mitigation defense. The state courts had to take the time to adjudicate this patently meritless claim, arising from Ramirez’s own sentencing-phase decision and subsequent about-face.

...

Moreover, by evading his sentence, Ramirez has inflicted recurrent emotional injuries on the victims of his crime. When Ramirez killed Pablo Castro, he stole more than a life and $1.25. He stole a father from nine children. Four of them filed a brief in this case to explain how Ramirez’s machinations have “‘frustrated’” their interest in seeing what they believe to be a just execution carried out.

Fernando Castro has watched as Ramirez repeatedly “‘used loopholes to delay [his] execution,’” leaving Fernando with a “‘lack of closure for many years, ever since [he] was merely a child.’” Roberto Castro likewise wants “‘to close this chapter so that the healing process can continue without being reopened every couple of years to entertain Ramirez’s appeals.’” Maria Chauvon Aguilar, who remembers her father as “‘a great man,’” also must endure “‘all this pain and suffering’” each time the courts “‘put a hold on’” Ramirez’s execution. Her indignity and frustration grow particularly acute when Ramirez receives “‘all this publicity’” from sympathetic media outlets for his efforts to delay his lawful sentence, as if “‘he just won a gold medal.’” Finally, Pablo Castro, Jr., must live every day with the fact that his father “‘was not able to witness [him] graduate school, basic training, advance individual training, or see his grandchildren.’” He wants “‘justice and [to] be able to close this horrible chapter’” in his life and the lives of his family members.

These four siblings ask that their father “‘finally have his justice’” so that “‘this nightmare [can] be over.’” As their words show, delays like the kind Ramirez has pursued here “inflict further emotional trauma on the family . . . of the murder victim.”

...

In the end, none of Ramirez’s federal habeas claims merited even a single certificate of appealability, let alone relief. Yet, through ceaseless litigation, strategic delay, and a “[l]ast-minute” blitz on the District Court, Ramirez parlayed his federal habeas petition into a 7-year deferral of his lawfully imposed sentence. We should interpret Ramirez’s actions in the instant litigation in light of that history, recognize that his shifting in-chambers-touching claim is just another chapter in that history, and reject his most recent attempt to delay his execution.

 

[AU9377 4,913]

On 7/1/2022 at 2:32 PM, NolaAuTiger said:

For the past couple of years, I have tried to make it a habit of reading every SCOTUS decision as they are handed down. At the end of any Court term, I am always steered back to at least one opinion, concurrence, or dissent that stands apart from all the others because of how it was written (not necessarily because of legal issue at play). 

As I look back at the most recent term, there are two lone dissents that I cannot forget. To be sure, neither case was "headline" worthy (what 8-1 decision ever is?). What makes the dissents memorable, in my view, is the clarity and force with which they were written. Here are snippets from both-

Justice Sotomayor's dissent in U.S. v. Madero. Here was the issue as framed by the Court:  "For various historical and policy reasons, including local autonomy, Congress has not required residents of Puerto Rico to pay most federal income, gift, estate, and excise taxes. Congress has likewise not extended certain federal benefits programs to residents of Puerto Rico. The question presented is whether the equal-protection component of the Fifth Amendment’s Due Process Clause requires Congress to make Supplemental Security Income benefits available to residents of Puerto Rico to the same extent that Congress makes those benefits available to residents of the States. In light of the text of the Constitution, longstanding historical practice, and this Court’s precedents, the answer is no."

Sotomayor disagreed. In her view, "there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others. To hold otherwise, as the Court does, is irrational and antithetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution. . . . Equal treatment of citizens should not be left to the vagaries of the political process. Because residents of Puerto Rico do not have voting representation in Congress, they cannot rely on their elected representatives to remedy the punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment. The Constitution permits Congress to “make all needful Rules and Regulations” respecting the Territories. Art. IV, §3, cl. 2. That constitutional command does not permit Congress to ignore the equally weighty constitutional command that it treat United States citizens equally."

Justice Thomas' dissent in Ramirez v. Collier. The issue here involved a death-sentenced individual's request for a preliminary injunction - in other words, if X happens, then I must be allowed Y. "A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari. . . . We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion."

Justice Thomas dissented. Consider how he recasts the facts. "Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25. Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas. This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

The saga of Ramirez’s crimes and the ensuing litigation warrants a fuller retelling than the majority provides.

On the night of July 19, 2004, John Henry Ramirez, Christina Chavez, and Angela Rodriguez ran out of drug money. Wanting more, they drove through Corpus Christi, Texas, in search of victims to rob. Ramirez v. Stephens, 641 Fed. Appx. 312, 314 (CA5 2016). Pablo Castro, a father of nine, was working the night shift at the Times Market convenience store, as he had for years. With midnight approaching, he and another employee prepared to close up. Castro collected the trash and went outside to put it in the dumpster.

Ramirez and his confederates found Castro in the convenience store’s parking lot. Wielding a serrated knife, Ramirez slashed and stabbed Castro 29 times. Castro suffered eight wounds on his forearm and hands as he struggled to defend himself. He suffered many more wounds to the head, neck, shoulders, and back. After Castro fell to the ground, the attackers rifled through his pockets, collected $1.25, and drove away.

Two employees at a nearby store witnessed the attack. When they reached Castro, he was still conscious. He had suffered a deep gash across his throat and was spitting up blood. Castro eventually lost consciousness and, by the time first responders arrived, he had stopped breathing. He died in the parking lot.

Having netted only $1.25 from Castro, Ramirez and the others pursued new targets. Within minutes of murdering Castro, they found April Metting waiting in the drivethrough of a Whataburger, with her 2-year-old son in the back seat. While Chavez distracted Metting, Ramirez crept up to the driver’s side window, grabbed Metting by the back of her neck, and held the now blood-stained serrated knife to her throat. Metting implored the assailants not to harm her in front of her child. Ramirez ordered: “‘Shut up, bitch.’” Metting surrendered her purse, and Ramirez let her go. The assailants again fled in their van.

They next targeted Ruby Pena Hinojosa, who was sitting in the drive-through line of a different Whataburger. As before, one of the women distracted Hinojosa while Ramirez approached her driver-side window to put the knife to her neck. But Hinojosa was able to dodge the knife, roll up the window, and back her car away from the assailants, who then departed in their van.

Not long after, responding officers spotted the van and pulled it over. When the officers exited their patrol cruiser, the van sped off. The police pursued, only to lose sight of it. Ramirez, Rodriguez, and Chavez then abandoned the van in an overgrown lot and continued on foot. Id., at *5. Police soon found and arrested Rodriguez and Chavez, but they did not find Ramirez. He fled to Mexico and hid there for over three years before law enforcement apprehended him near the U. S.-Mexican border.

...

Ramirez continued to engineer delay in state court. After a jury convicted him, his case moved to the sentencing phase. Ramirez’s lawyer intended to put on mitigation witnesses. But after one witness, Ramirez instructed his lawyer to call no more. The state court found Ramirez competent and honored his decision. Predictably, he was sentenced to death. Yet, during state habeas proceedings, Ramirez nonetheless brought a claim (among several others) accusing his state trial counsel of ineffective assistance for failing to provide an adequate mitigation defense. The state courts had to take the time to adjudicate this patently meritless claim, arising from Ramirez’s own sentencing-phase decision and subsequent about-face.

...

Moreover, by evading his sentence, Ramirez has inflicted recurrent emotional injuries on the victims of his crime. When Ramirez killed Pablo Castro, he stole more than a life and $1.25. He stole a father from nine children. Four of them filed a brief in this case to explain how Ramirez’s machinations have “‘frustrated’” their interest in seeing what they believe to be a just execution carried out.

Fernando Castro has watched as Ramirez repeatedly “‘used loopholes to delay [his] execution,’” leaving Fernando with a “‘lack of closure for many years, ever since [he] was merely a child.’” Roberto Castro likewise wants “‘to close this chapter so that the healing process can continue without being reopened every couple of years to entertain Ramirez’s appeals.’” Maria Chauvon Aguilar, who remembers her father as “‘a great man,’” also must endure “‘all this pain and suffering’” each time the courts “‘put a hold on’” Ramirez’s execution. Her indignity and frustration grow particularly acute when Ramirez receives “‘all this publicity’” from sympathetic media outlets for his efforts to delay his lawful sentence, as if “‘he just won a gold medal.’” Finally, Pablo Castro, Jr., must live every day with the fact that his father “‘was not able to witness [him] graduate school, basic training, advance individual training, or see his grandchildren.’” He wants “‘justice and [to] be able to close this horrible chapter’” in his life and the lives of his family members.

These four siblings ask that their father “‘finally have his justice’” so that “‘this nightmare [can] be over.’” As their words show, delays like the kind Ramirez has pursued here “inflict further emotional trauma on the family . . . of the murder victim.”

...

In the end, none of Ramirez’s federal habeas claims merited even a single certificate of appealability, let alone relief. Yet, through ceaseless litigation, strategic delay, and a “[l]ast-minute” blitz on the District Court, Ramirez parlayed his federal habeas petition into a 7-year deferral of his lawfully imposed sentence. We should interpret Ramirez’s actions in the instant litigation in light of that history, recognize that his shifting in-chambers-touching claim is just another chapter in that history, and reject his most recent attempt to delay his execution.

 

Justice Sotomayor is an intellectual giant that towers over her peers, in much the same way that Justice Scalia did during his time on the Court. That isn't to say that they are or were always correct or on the winning side of every argument, but their intellect has to be admired nonetheless.  Justice Thomas, not so much.

I apologize for such a short response, but I am at the beach with family all week and the sun has drained my brain of the will power to really dive into much.  This was a good read though.  Happy 4th everyone.

Edited July 6, 2022 by AU9377

[AUFAN78 3,889]

2 minutes ago, AU9377 said:

Justice Sotomayor is an intellectual giant that towers over her peers, in much the same way that Justice Scalia did during his time on the Court. That isn't to say that they are or were always correct or on the winning side of every argument, but their intellect has to be admired nonetheless.  Justice Thomas, not so much.

Of course you call out a black man. And before you even think about it, I don't want to hear about your black friend. 

[NolaAuTiger 3,295]

21 minutes ago, AU9377 said:

Justice Sotomayor is an intellectual giant that towers over her peers, in much the same way that Justice Scalia did during his time on the Court. That isn't to say that they are or were always correct or on the winning side of every argument, but their intellect has to be admired nonetheless.  Justice Thomas, not so much.

I apologize for such a short response, but I am at the beach with family all week and the sun has drained my brain of the will power to really dive into much.  This was a good read though.  Happy 4th everyone.

Scalia had a way with words that is unmatched. 

I think Kagan and Thomas are the best writers sitting on the bench today.

Gorsuch uses contractions, which I do not like.

Dissents are always "more fun," because the writer does not have to garner votes. 

[AU9377 4,913]

Just now, AUFAN78 said:

Of course you call out a black man. And before you even think about it, I don't want to hear about your black friend. 

Hilarious.  I guess I just have a thing for Puerto Rican women. You clearly have something against Latinas. 

The ridiculousness of the original post is only amplified by the ridiculousness of my answer.

[AU9377 4,913]

Just now, NolaAuTiger said:

Scalia had a way with words that is unmatched. 

I think Kagan and Thomas are the best writers sitting on the bench today.

Gorsuch uses contractions, which I do not like.

Dissents are always "more fun," because the writer does not have to garner votes. 

It isn't the ability of Thomas to construct his paragraphs that I question.  It is his insistence on stretching fact patterns to fit his pre-determined outcome that truly annoys many people.  There is a reason that he has been on the court as long as he has been without having authored any major opinions until recently (he has authored opinions, but I am speaking of precedent shaping opinions).  However, that is why they call them opinions, we all have them.

[AUFAN78 3,889]

4 hours ago, AU9377 said:

Hilarious.  I guess I just have a thing for Puerto Rican women. You clearly have something against Latinas. 

The ridiculousness of the original post is only amplified by the ridiculousness of my answer.

Clearly huh? Go ahead and quote me singling out Justice Sotomayor. I won't hold my breath. 

And yes, your original post was clearly as ridiculous as your subsequent response.

[Didba 5,256]

13 hours ago, AUFAN78 said:

Of course you call out a black man. And before you even think about it, I don't want to hear about your black friend. 

You for real?

[AUFAN78 3,889]

5 hours ago, Didba said:

You for real?

You damn right. You are relatively new right? Get to know character in short order or pay attention to those of us who already know it. This isn't a first for this poster nor will it be his last.

"It isn't the ability of Thomas to construct his paragraphs that I question. There is a reason that he has been on the court as long as he has been without having authored any major opinions" 

But I am not calling out the black man or his mental capability. Horse sh##. That is precisely what you are doing. 

 

[AU9377 4,913]

Just now, AUFAN78 said:

You damn right. You are relatively new right? Get to know character in short order or pay attention to those of us who already know it. This isn't a first for this poster nor will it be his last.

"It isn't the ability of Thomas to construct his paragraphs that I question. There is a reason that he has been on the court as long as he has been without having authored any major opinions" 

But I am not calling out the black man or his mental capability. Horse sh##. That is precisely what you are doing. 

 

Whatever.  I have never questioned his mental capacity.  Your childish attempt to characterize my comment in a manner that can only be meant to deflect from the actual discussion is abhorrent.  Is it possible that I simply prefer justices that are less political and less hypocritical?  Justice Thomas speaks often now about trust being lacking on the Court.  He does this while encouraging his spouse to openly advocate for overturning a valid U.S. election, ignoring the U.S. Constitution and supporting the storming of the joint session of congress being held to publicly certify the valid slates of electors from each state in the union.

None of the above has anything to do with his race or the race of his wife or anyone else on the Court.  It has everything to do with his oath as a Justice and my opinion concerning his performance as a justice.  I am entitled to that opinion, as you are entitled to yours, without the use of a silly race card.

https://www.newyorker.com/news/daily-comment/clarence-thomass-twenty-five-years-without-footprints

Edited July 7, 2022 by AU9377

[AUFAN78 3,889]

6 minutes ago, AU9377 said:

Whatever.  I have never questioned his mental capacity.  Your childish attempt to characterize my comment in a manner that can only be meant to deflect from the actual discussion is abhorrent.  Is it possible that I simply prefer justices that are less political and less hypocritical?  Justice Thomas speaks often now about trust being lacking on the Court.  He does this while encouraging his spouse to openly advocate for overturning a valid U.S. election, ignoring the U.S. Constitution and supporting the storming of the joint session of congress being held to publicly certify the valid slates of electors from each state in the union.

https://www.newyorker.com/news/daily-comment/clarence-thomass-twenty-five-years-without-footprints

Yes you did. The rest of your bloviation is meritless and unworthy of comment. 

[NolaAuTiger 3,295]

17 hours ago, AU9377 said:

It isn't the ability of Thomas to construct his paragraphs that I question.  It is his insistence on stretching fact patterns to fit his pre-determined outcome that truly annoys many people.  There is a reason that he has been on the court as long as he has been without having authored any major opinions until recently (he has authored opinions, but I am speaking of precedent shaping opinions).  However, that is why they call them opinions, we all have them.

If you have time, read his full dissent in Collier. 

[NolaAuTiger 3,295]

17 hours ago, AU9377 said:

There is a reason that he has been on the court as long as he has been without having authored any major opinions until recently (he has authored opinions, but I am speaking of precedent shaping opinions).

I disagree with you here on at least two fronts. When the Chief Justice votes with the majority, the Chief Justice decides who writes the opinion; otherwise, the power shifts to the justice in the majority who has the most seniority. Also, I would say that nearly every opinion handed down by SCOTUS is "precedent shaping." The media's non-interest in covering a case does not change that fact. 

[AU9377 4,913]

Just now, AUFAN78 said:

You damn right. You are relatively new right? Get to know character in short order or pay attention to those of us who already know it. This isn't a first for this poster nor will it be his last.

"It isn't the ability of Thomas to construct his paragraphs that I question. There is a reason that he has been on the court as long as he has been without having authored any major opinions" 

But I am not calling out the black man or his mental capability. Horse sh##. That is precisely what you are doing. 

 

The man went 10 (TEN) years without asking a question from the bench during oral arguments.  That doesn't make him incapable of being an effective justice, but it does show a disinterested justice determined to impose his theories of constitutional interpretation regardless of the facts before the court.

Justice Thomas is willing to pretend that the writers of the constitution contemplated the existence of an AR-15, although they used muskets at the time, yet considers an individual's right to privacy to be a fairy tale construct.  They either both require an inferred intent or neither do.

[homersapien 11,353]

Here's some commentary on this "conservative" SCOTUS that's focused on a different terrible decision.

There is no conservative legal movement

Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision

Perspective by Adrian Vermeule

 

Adrian Vermeule is the Ralph S. Tyler Jr. professor of constitutional law at Harvard Law School. His most recent book is "Common Good Constitutionalism."

 

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.

It is grimly hilarious, then, that the court’s opinion in West Virginia v. EPA follows none of these methods. It is not an “originalist” opinion. Originalism purports to ground the interpretation of legal texts in the original public meaning as understood by the founding generation, for constitutional provisions, or in the original public meaning of enacted statutes. As Justice Neil M. Gorsuch recently wrote in Bostock v. Clayton County, which recognized sexual orientation and gender identity as protected categories under federal civil rights law, “this Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” In West Virginia v. EPA, however, neither the majority nor Gorsuch’s concurrence shows any interest in the original context or public understanding of the Clean Air Act provisions enacted in 1970 — perhaps because, as the court put it soon afterward in 1976, those provisions were widely understood to create a “drastic remedy.” In West Virginia v. EPA, the original understanding of the relevant provisions is absent without leave.

The court briefly, and Gorsuch laboriously, tried to ground the major questions doctrine in the separation of powers and the “nondelegation doctrine,” a putative constitutional principle which holds that Congress may not grant rulemaking authority to the executive in excessively broad or discretionary terms. On this view, the major questions doctrine is used to construe statutes narrowly to avoid a potential question of constitutionally invalid delegation. Requiring clear congressional authorization for important agency action, the argument runs, represents an attempt to implement the separation of powers at the level of statutory interpretation rather than constitutional law.

The problem, from an originalist standpoint, is that there is no constitutional question to avoid; the originalist credentials of the nondelegation doctrine are shockingly thin. Careful scholarship has confirmed the thesis that the nondelegation doctrine was essentially nonexistent during the founding era, in which the first Congress made broad delegations to the executive in a variety of areas, including military service, territorial government and relations with Indian tribes.

The doctrine is basically a creation of the Supreme Court in the later 19th century, and even then it did not control the outcomes of cases; the court has only twice in its entire history applied the doctrine as a matter of constitutional law, invalidating the central components of the New Deal’s National Industrial Recovery Act in 1935 — some 150 years after the Constitution’s structural provisions were written. Although Gorsuch’s concurrence tries to blur the nondelegation doctrine’s desperate lack of originalist credentials with a long string of citations to academic works, those arguments mainly eschew historical particulars in favor of abstract constitutional theory, and in the end the facts of the founding era are what they are: In the vast landscape of contemporary documents, total mentions of anything like a nondelegation principle would take up less space than an op-ed. Nondelegation is an invented tradition.

The decision is also not textualist, as Justice Elena Kagan observed in a crushing dissent. Textualism says that the ordinary meaning of statutory text is the law, but the majority‘s statutory analysis is cursory, and that of Gorsuch basically nonexistent. The court briefly claims that the major questions doctrine captures the ordinary understanding of Congress in situations where agency action has “economic and political significance.” (What agency action doesn’t?) But the court itself also makes a point of saying that the doctrine counsels against “a reading of a statute that would, under more ‘ordinary’ circumstances, be upheld.” The only cases in which the doctrine possibly makes a difference arise when the courts believe that a “highly consequential” issue warrants an extraordinary override of ordinary statutory meaning.

The decision is hardly traditionalist. The leading precedent on the major questions doctrine, according to both majority and dissent, held that Congress had not clearly authorized the Food and Drug Administration to regulate nicotine as a drug — a precedent not decided until 2000. This is no venerable maxim or principle of our law; one will search for it in vain in the pages of Blackstone. In historical perspective, it is a recent innovation by justices who believe, doubtless with the utmost sincerity, that Congress has too cavalierly and too generously authorized administrative agencies to regulate corporate America in the name of health, safety, a clean environment and the public welfare generally.

Finally, West Virginia v. EPA is not “restrained” in any possible sense. At the level of procedure, the court decided a case in which, remarkably, no agency rule existed. The Clean Power Plan had been repealed by the Trump administration, and the Biden administration had asked the lower courts not to reinstate it. Nonetheless, the justices felt that there was a sufficient threat that EPA might try to create such a rule in the future. Any more such restraint, and the court will end up dispensing with actual cases and controversies altogether in favor of pronouncing on abstract hypotheticals.

On the merits, the court insists, again and again, that the doctrine applies when cases are “extraordinary.” But this is not only to admit, but indeed to proudly proclaim, that this is a doctrine ungoverned by ordinary legal principles. Some legal doctrines are unpredictable in application; here unpredictability is built into the essence of the doctrine itself. Who knows when the court, or for that matter any one of the nation’s 700 district judges, will deem a case “extraordinary” and shut down a national federal regulatory program? Moreover, despite insisting that major questions cases are extraordinary, the court inconsistently went on to describe them as arising “from all corners of the administrative state” — a clear signal that the court expects its anti-regulatory approach to be routinely invoked in the future. The extraordinary has become ordinary. The doctrine displays the same vagueness of standards that the court finds objectionable, under the nondelegation rubric, when authority is granted to agencies. What is constitutional overreach for unelected bureaucrats in the agencies is constitutional virtue for the unelected bureaucrats on the bench. Whatever this is, judicial restraint it is not.

Judged by any of the methodological precepts professed by the conservative legal movement, West Virginia v. EPA stands condemned. How is this possible? If there is no conservative legal movement, what is there? The answer is not mysterious: There is a libertarian legal movement, a consistent opponent of federal regulation, supported and rationalized by an entrenched network of richly funded, quasi-academic and advocacy institutions — in essence, a resurrection of the Liberty League of the 1930s. As recounted by The Post’s Ruth Marcus in her book “Supreme Ambition,” the aim of the movement was stated outright by former White House counsel Donald McGahn, who played a critical role in the appointments of both Justices Gorsuch and Kavanaugh: “As McGahn … told the Federalist Society, ‘The greatest threat to the rule of law in our modern society is the ever-expanding regulatory state, and the most effective bulwark against that threat is a strong judiciary.’… The emphasis on social conservatism and its associated hot-button issues ended with [former Justice Antonin] Scalia, McGahn said at the first meeting after the election to discuss the justice’s successor. It was now all about regulatory relief. On that score, McGahn said, Scalia ‘wouldn’t make the cut.’ ” The methods associated with Scalia — originalism, textualism, traditionalism and judicial restraint — have apparently also been left on the cutting-room floor.

https://www.washingtonpost.com/outlook/2022/07/06/epa-roberts-conservative-court-libertarian/