It’s been a jam-packed week for the Supreme Court, and TNR’s Matt Ford has the details: On Monday, the justices delved into Senate Bill 8, Texas’s controversial abortion bounty law, and sounded very skeptical about whether they’ll allow it to stand. A day later, they waded into a thorny dispute between members of a community college board, in a case that could have far-reaching First Amendment implications. Then, on Wednesday, the justices took up a major Second Amendment case involving concealed-carry rights that could end up unwinding gun control laws across the country.
As the kids say, It’s lit, y’all. And yet for all of this week’s action, none of these cases truly represent the high court’s most significant move over the past seven days. Late last Friday, the Supreme Court agreed to hear appeals from coal-producing states and the corporations in that industry seeking to limit the Environmental Protection Agency’s authority to regulate carbon emissions from coal-fired power plants. The high court’s decision to hear the case could “sharply cut back, if not eliminate altogether, the new administration’s ability to use the Clean Air Act to significantly limit greenhouse gas emissions from the nation’s power plants,” Richard J. Lazarus, a law professor, told The New York Times. On a broader scale, the maneuver suggests that the court’s new majority could be ready to open a shooting war against democracy—and, perhaps, the planet.
What made the court’s decision so unusual, in this instance, is that the EPA has not yet implemented or even proposed a regulation; there’s no actual agency action for the court to review. Rather than seek a remedy arising from a regulation, the plaintiffs have asked the justices to take preemptive action to “clarify the bounds of EPA’s power” before President Biden even tries to pass any climate regulations. Or as frequent TNR contributor Simon Lazarus (no relation to Richard) told me, the coal industry is seeking an “advisory opinion”—something the high court is not supposed to offer.
“This is a brand of judicial meddling that violates the most fundamental constitutional principle cabining judges’ authority to oversee executive branch activity,” Lazarus told me. In other words, courts cannot act as “roving commissions” to make pronunciations about the law in abstract but can rule only on actual “cases or controversies.”
“This keystone of judicial restraint has been in place since as long ago as 1793, when the Supreme Court rejected George Washington’s request for advice on the scope of U.S. treaty obligations to France,” Lazarus said. “The fact that this court, at least the four members required to accept a review petition, could now blow past this hoary maxim that ‘federal courts do not issue advisory opinions’–which this court itself reiterated barely four months ago, in a June 2021 ruling—shows how unconstrained the six-justice ultraconservative majority feels, when given a chance to nail down a political objective.”
