Climate Change

Overheated and Inaccurate Commentary on Courts and Climate

Demand Justice's Balls and Strikes provides more heat than light.


Earlier this year the folks at Demand Justice, a progressive "dark money" group created to help shift the courts left by almost any means necessary, launched "Balls and Strikes," a website providing court commentary premised on the idea that "interpreting the law is an inherently political act with real-world consequences," and bearing them motto: "Making Sam Alito Mad since 2021."

Yesterday Balls and Strikes published a commentary by Alda Yuan titled "Courts Are Making the Climate Crisis Worse," arguing that we should blame courts, and the Supreme Court in particular, for the lack of action on climate change. Writes Yuan: "For decades, the 'least dangerous branch' has wielded its considerable power to shield from responsibility the corporate giants that would rather consign the planet to a fiery doom than find a different way to pay for mega-yachts." Whatever one thinks of the premise, the article is a mess of overheated rhetoric, misleading claims, and inaccuracies.

The following paragraph is illustrative:

The Supreme Court's enabling of the corporate interests driving climate change predates this particular group of justices. In 2011, a unanimous Court—minus Sotomayor, who was recused after hearing the case below—ruled in American Electric Power Company v. Connecticut that a lawsuit brought by eight states, New York City, and several environmental groups against greenhouse gas-emitting power companies could not go forward. Although the Court finally ruled in 2007 that the Clean Air Act permits the Environmental Protection Agency to regulate greenhouse gases, the EPA had yet to formally do so. Meanwhile, rather than continue to wait around as the air got worse, the states filed a lawsuit alleging that the emissions were a "public nuisance"—at common law, an injury that affects the public at large, not an individual or a discrete  group. Since the harms of climate change fall generally—though not necessarily equally—upon society, courts could have used public nuisance law as a sensible, interim alternative in order to hold polluters accountable.

Where to begin?

According to this narrative, a prior group of justices began "enabling . . . corporate interests" a decade ago in AEP v. Connecticut. Although the article notes the case was unanimous, it curiously omits that the decision was written by Justice Ruth Bader Ginsburg, was joined by four justices who are still on the Court (Thomas, Breyer, Alito, and the Chief), and adopted the position urged by the Obama Administration.

What the article also omits is that the AEP decision was a direct and predicted consequence of the later-mentioned (and unnamed) decision the Court "finally" issued in 2007: Massachusetts v. EPA. As I explained in this article, it was well understood that a court ruling that Congress had authorized federal regulation of greenhouse gases under the Clean Air Act would displace federal common law interstate nuisance claims under longstanding Supreme Court precedent. In other words, the climate claims lost in AEP because they prevailed in Massachusetts v. EPA.

The larger omission here is that the only reason there is any EPA regulation of greenhouse gases at all is because of that 2007 decision–what some have called the most important environmental decision of the past twenty-five years, if not all time. In Massachusetts v. EPA, the Court held that states have standing to sue for climate-related harms and that the EPA may regulate greenhouse gases under the Clean Air Act. All subsequent EPA regulation of greenhouse gas emissions is a consequence of this decision, as is much subsequent climate litigation, which was enabled by the standing ruling).

In reaching this conclusion the Court rejected the view adopted by the executive branch and (also omitted from the article) laid the groundwork for courts to have jurisdiction to hear subsequent climate claims, including those raised in AEP. In other words, if you like federal greenhouse gas regulation and litigation, you should be thanking the courts, not condemning them.

The article also gets some basic facts wrong. For instance, it claims the EPA had failed to regulate greenhouse gases when AEP was decided. This is false. The EPA made a formal endangerment finding triggering the regulation of greenhouse gases under the Clean Air Act in 2009, and promulgated its first GHG regulations in 2010.  "Meanwhile," the article claims, the states filed suit "rather than continue to wait around as the air got worse," but the states actually filed suit in AEP in 2004. (And, if you want to know why it took so long for that case to reach the Supreme Court, well, you might want to ask Justice Sotomayor.)

While the article tries to place the blame for the slow adoption of climate regulation on the courts, complaining about decisions like the Ninth Circuit's Juliana v. United States ruling, the real culprit is Congress. Massachusetts v. EPA notwithstanding, Congress has never expressly authorized the regulation of greenhouse gas emissions (thought that may change this year). And if one is concerned about the pace of climate policy, one could further criticize Congress (and the executive branch) for avoiding direct measures that could produce emission reductions more quickly than regulations, such as a carbon tax. What is simply bizarre is to try and blame the lack of such measures on the courts.

None of this is to say there are not things to complain about when it comes to court decisions concerning climate change. I have been quite critical of Massachusetts v. EPA (for misinterpreting the Clean Air Act and, in effect, doing the legislature's job) and I have a forthcoming paper (soon to be posted on SSRN) explaining why the U.S. Court of Appeals for the Second Circuit was wrong to conclude that state-law-based nuisance claims against fossil fuel producers are preempted.

Perhaps it is too much to expect fair-minded and accurate critiques from Demand Justice. So be it. But if one is truly concerned about climate change (as I believe one should be), the focus should be on Capitol Hill, more than the courts.

NEXT: Pseudonymity and "Purely Legal" Challenges

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  1. The pesky problem with the congress is that a lot of voters are a) not persuaded climate change is a problem. The left has only itself to blame by making world ending apocalyptic predictions such as all the poles will melt by 2012. And b) even if it is a problem, they are not persuaded that regulation by fiat or tax is a good idea. And c) that even if we regulate it in the USA, it will make a difference since China and India are huge polluters. All these solar panels and batteries are being made in China with coal powered electricity. The pollution is Beijing is comparable to Pittsburgh in the 1930s.

    So, stop blaming the judiciary, or congress, and start persuading people congress and the EPA should be in this business in the first place.

    1. to be clear in b) there are other ways to control carbon emissions like trading carbon credits, which worked very well for other pollutants.

      1. Why do you want to strangle all the trees?
        Do you hate Mother Nature?
        CO2 is a natural and necessary thing; ask any plant.

    2. As with everything else, the left views democracy as a means to an end. They are happy to discard it the instant it’s no longer useful.

      1. You know that’s how the right feels too, right? And not only that, they’re extremely open about it.

      2. Yup. I’ve seen that openly and clearly, the way these pinko commie leftist state governors and legislators pass laws to restrict voting. Heck, one librul state made it illegal to give god-fearing voters waiting in the hot sun a bottle of water! Dang librul fashist commie skum!

    3. And China is pressing the “pedal to the metal” with respect to use of coal generated electricity

    4. You left out a further objection: Even if all the hysterical predictions were precisely true, these folks who are just itching to get their hands on the levers of power are the very last people we want to be in charge of anything.

      1. That falls under b). A private sector solution trading carbon credits is the way to keep these ppl out of power.

        1. I am sorry, we are talking past each other. There will be no market in trading carbon credits unless the government enforces the same.

          1. And the government won’t enforce it until the Koch industries executives pay them to.

  2. If you believe courts can and should simply order the policies you want enacted, as these folks do, then their argument seems completely correct. If their reasoning is valid, then Congress, the Executive, and concepts of legal consistency all have nothing whatsoever to do with what the Supreme Court ought to do. If the Supreme Court’s job is to order correct policy, then legal niceties like conceiving of federal pre-emption and state jurisdiction as inconsistent are as irrelevant as what Congress says.

    The court should simply ignore the sort of gobbledygoop Professor Adler raises and find for the party that is arguing for the policy Balls and Strikes wants enacted every time, and come up with some sort of ceremonious-sounding bullshit with lots of legal jargon to say about it for the benefit of people like Professor Adler. No fuss, no muss.

    1. Of course, the parties’ argments needn’t be obstcles to the court’s ordering correct policy any more than Congress’ statutes or consttitutional text. All these things are just for show.

    2. Visited their site. Their top demand is Court packing, so that the Court will do what they demand regardless of the actual law. In fact, they want the entire judiciary expanded and packed, from top to bottom.

      I gather that “balls and strikes” is meant ironically, since they pretty much openly want the umpire to be a crook. Only their crook.

      1. It’s meant ironically, but in the sense that it’s calling out judges like Roberts for saying things like that when it’s clearly bullshit. The entire premise of the site is that the conservatives already know courts are political and behave accordingly even if their judges will try to spout some kind of “I’m neutral” bullshit. So they’re asking the left to behave the same.

        So they’re just dropping the pretense of neutrality in the way conservative politicians did decades ago, but not even bothering with the contempt for their audience that conservative judges and commentators seem to have. But indeed, some judges like Jim Ho aren’t even bothering with the pretense to neutrality anymore.

        I mean seriously: why are conservatives concerned about court reform and anti-court packing and putting certain right-wing hacks in the court? Because they know that’s how they get the policy they want. You can get literally everything you ever dreamed of from the court!

        Don’t like gun regulations? Court
        Don’t like abortions? Court
        Don’t like federal spending programs? Court
        Don’t like state regulations of anything? Go to court, religious freedom/freedom of contract etc.
        Want google to be a public utility? Court.
        Don’t like election of policy makers for the few things you can’t stretch the courts to do? COURT!

        1. You have that EXACTLY backwards. That’s why the Liberals want to pack the Courts.

          1. No it’s right. They want to pack the courts because otherwise conservatives can just get everything they want through courts as currently constituted and call it “law.” Again, if conservatives don’t even need to win elections or have majority support for anything and can just achieve all their policy (or electoral!) goals in court, then, of course liberals are going to want to reform it. To not advocate that would be dumb.

            Oh and if you think conservatives are above court packing or reform…see how they behave in states where their state courts are slightly more liberal than their state legislatures.

            1. LTG,
              C’mon. The claims of left and right are just mirror images of each other.
              At least my judicial hero, Richard Posner was nakedly honest about his utilitarianism

              1. With control over the courts, liberals got what they wanted. Conservatives, always playing a chronic game of catch up, entered a long game. The long cynical game of court appointments facetiously theoretically non-political.

                And 40 years later, it comes partially to fruition.

                Well, suddenly it’s a problem for the side benefitting from their judges most of those 40 years.

                It’s always been political. The joke, in The Comedian’s terms, is both sides play it for power behind the scenes while maintaining irrelevant value spouting in public.

                Here the left fights itself. Which side will win? Feds as dominant policy makers, or enabling lawsuits for their primary faction?

                “Do you use real butter on the popcorn?”

        2. “So they’re asking the left to behave the same.”

          Too late! The New Deal and Warren Courts already did this.

          1. Bob: nothing from America’s past affects race relations today. It was a long time ago.

            Also Bob: the decisions of courts 90 years ago can be easily imputed to the left today.

            1. Two straw arguments enter…

              1. Not a strawman just attacking your blatant hypocrisy. I mean I wouldn’t have made this comment if you were intellectually honest.

    3. There argument is generally that conservatives already know that that’s how courts work and act accordingly, and it’s time the left believed the same thing.

      1. If so, their argument is pure BS.

        1. Is it? Why did McConnell block Garland saying he wanted to let Americans decide but push ACB through during an election complete with White House party? Why do conservatives go to court to get rid of every single democratic policy they don’t like, and often succeed? Why did Texas think SB8 would work? Why are judges like Jim
          Ho straight up abandoning the pretense to political neutrality?

          1. I didn’t care much either way at time of Garland’s nomination, but he just set the FBI loose on people that object to school board policies. Given that apparent disdain for speech rights it’s a damn good thing that he’s not on the Court.

            1. That’s for sure: The idea that he was any kind of ‘moderate’ has sure been disproven since he’s been AG. Rather, he seems to be an instinctive authoritarian.

            2. Where “object” included death threats? I didn’t think free speech rights protected death threats. Huh. Who knew?

              1. They always allege ‘death threats’ whenever they want to crack down on somebody. Let’s see them document them.

                1. Well, that was that one anonymous guy on Twitter…

                2. As though you wouldn’t dismiss whatever documentation as insufficient to meet your outcome-oriented standards.

          2. “Why do conservatives go to court to get rid of every single democratic policy they don’t like, and often succeed? ”

            No liberal ever went to court to stop a policy they didn’t like, nope.

            1. Not saying they don’t. But there is a huge disconnect between how establishment Dems view the issue and everyone on the left. The left wants mainstream Dems to act like republicans/conservatives when it comes to the courts.

          3. The joke is both sides do it. Democrats screetch democracy and therefore The Will of The People shall not be thwarted.

            Until it votes the wrong way, as with Prop 8 in California.

            Libertarians have no problem overturning stuff like this on principle of it. But we do not run around most of the time arguing for expanded government powers to control free enterprise in new areas not previously considered so because The Will of The People.

      2. If the left hasn’t already believed that and been acting on it for many decades, how did Roe V Wade happen?

        1. They never made judges a priority even as conservative courts kept chipping away at things. And they also have a problem: courts have a harder time advancing most (but not all) of their policy goals compared to conservatives. Courts can’t create new federal spending programs or gun regulation for instance. But they are perfectly suited to advancing conservative goals, including limiting federal spending!

          1. As a typical matter, conservatives don’t have a lot of trouble under the Constitution advancing their policy preferences, because it’s a moderately conservative document by today’s standards. So they typically don’t need the Court to make shit up.

            1. Lol. I expected this amazing deluded response. “The constitution, a famously vague and short document, always gives me what I want, and that’s just the LAW.”

              Sorry to break it to you, but conservative judges make shit up ALL the time. Like all the time.

              A plausibility requirement in federal pleading? Made up, not in the text of rule 12 or rule 8.
              Shelby County? Made up, not just in terms of law, but history too.
              Every federal arbitration act case? Completely made up.
              Ever expanding QI? Made up.
              Eighth Amendment is frozen in 1791: made up rule. Absolute fiction sadistic conservatives just came up with.
              Restrictions on Bivens or hostility to the very concept of implied rights of action? Made up.
              State courts can’t deal with state election law? Made up out of nowhere by Rehnquist in 2000 gonna be the new rule if ACB agrees with Kav, Alito, Thomas, and Gorsuch.
              Religious freedom exemptions for every law ever? Absolutely completely made up.
              Commerce clause has an “activity-inactivity distinction?” Made up.
              Congressional spending can’t be coercive? Made up. No where in the text.
              Congress can’t abrogate State sovereign immunity? Completely utterly made up. Read Seminole Tribe v. Florida sometime, instead of “penumbras” Rehnquist talks about “postulates” instead.
              Literally all of the pro-cop fourth and fifth amendment jurisprudence? Absolutely made up.
              The idea that you can just have different rules for detaining citizens because of “terrorism?” Made up.

              Oh and lets not forget the entire conservative textualism and “original public meaning” jurisprudence, the one they (used to) claim was the only legitimate one, until it stopped working as well as they would have liked, was simply made up a few decades ago….

              1. Take gun control as an example: The left wants it, the right doesn’t.

                Which of them has an explicit constitutional right to base their arguments on? The right.

                So the right doesn’t need to make crap up to win on gun control. The left does.

                It’s like that on a lot of issues. The 1st amendment is in the Constitution. The ERA isn’t.

                1. “Which of them has an explicit constitutional right to base their arguments on? The right.”

                  Which of them only came up with an interpretation in the last three-four decades that eviscerates all gun control everywhere? The right. They made it up after realizing how cool school shootings were.

                  “The 1st amendment is in the Constitution. The ERA isn’t.”

                  The First Amendment doesn’t say anything about campaign finance, or money being speech, or religious freedom being an exemption to generally applicable laws. But you know what? Conservatives made that principle up to get what they want.

                  And the ERA isn’t in the Constitution, but you know what is? The equal protection clause, which says what it says. And you have to go through pseudo-historical bullshit to justify its limited application. You know how you do that? Making shit up.

                  You’re just lying to yourself so you don’t have to confront the fact that your side isn’t pure as the driven snow and in fact are just as big of partisan hacks as anyone else who make shit up to get what they want.

                  Also notable that you could only think of two counterarguments to all my examples, only one of which is sort of good.

                  1. “Which of them only came up with an interpretation in the last three-four decades that eviscerates all gun control everywhere? The right. They made it up after realizing how cool school shootings were.”

                    That’s historical revisionism. That’s all.

                    Look at the National Firearms Act of 1934. Why is it written as an extremely high tax on specific guns?

                    Because they understood it was unconstitutional for the federal government to ban guns, that’s why. The most they could do was tax interstate commerce in them.

                    And you realize that the Supreme Court case of US v Miller was the federal government appealing its defeat in district court, where the NFA had been declared in violation of the 2nd amendment? That was in 1938.

                    Now, granted, the district court judge in that case had done so in order to set up a Supreme court case where there would be nobody arguing against the government. But it’s not like nobody was seriously arguing the position, and they wouldn’t have needed a perfectly crafted test case if it was open and shut.

                    I’m sure that at some point in his series Halbrook will point out how wrong you are.

                    1. “I’m sure that at some point in his series Halbrook will point out how wrong you are.”

                      Cool. I’ll finally feel what it’s like to be you on a daily basis.

                    2. Let’s take a look at Justice Taney’s parade of awfuls in the Dred Scott decision, what he declared blacks would be entitled to if they were citizens:

                      ” For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.”

                      In 1856, the right to keep and bear arms was understood to be a right of citizens.

                      Justice Story, 1833, on the 2nd amendment: “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

                      A right of citizens, and contemplated to be used against the government itself.

                      Or, hey, Tenche Coxe, while ratification of the 2nd amendment was being debated, promoting it with the approval of its author: “the people are confirmed by the next article in their right to keep and bear their private arms.”

                      Their private arms, mind you. Not arms issued them as members of a militia.

                      LTG, the evidence that this was intended, and understood to be, an individual right, is overwhelming. If you think the contrary, it’s because you’ve fallen for historical revisionism.

                    3. You never addressed any other instance I raised of conservatives making stuff up, presumably because you can’t. Which would actually be impressive as your first instance of intellectual humility you’ve ever demonstrated here. So kudos.

                    4. I’m concentrating on the topic I’ve extensively researched, and care most about.

                      I could go on about the 1st amendment in a similar vein, but I’ve got to pack, heading out on vacation tomorrow.

                      I wouldn’t say conservatives are constitutional innocents, mind you. Just that they inherently have less need to distort the Constitution, because it just happens to be better aligned with what they want.

                    5. Have fun. Hope the weather is nice.

                    6. *Might* rain Saturday morning, but other than that it looks like a nice weekend to see the fall color in the NC mountains.

              2. No liberal justice ever made up things.

                Its like the Warren Court never existed.

                1. And to the extent they did, it was a good thing for everyone, including you. When conservatives criticize the “Warren Court” if you actually quiz them on that era’s precedents, other than perhaps Miranda, if they disagree with them they reveal themselves as nasty and vicious people who don’t believe in fundamental fairness or kindness. I mean without the Warren Court and the later decisions extending their logic, this is the world you want:

                  You think it is perfectly acceptable for the police to use warrantless wire-tapping (No Katz and no Mapp) to arrest a 17 year old black student from a segregated school (No Brown) for being in consensual sexual relationship with a 17 year old white girl (No Griswold, no Loving). He’s held for hours and denied a lawyer even if he asks for one (No Miranda, No Gideon, No Edwards).

                  Eventually the Prosecutor has a choice: he can send him to juvenile court where he will have zero due process rights whatsoever, and the judge can send him to reformatory until he is 21 without a complaining witness even appearing (No In re Gault). OR he can opt for felony sodomy charges that carry a death sentence (No Lawrence, no Coker, no Kennedy, no Roper). He opts for the latter.

                  At trial, this child is not represented. He’s too poor you see. (No Gideon) He doesn’t know the rules of evidence, how to question witnesses. Prosecutor on the other hand assigns his most experience trial attorneys.

                  The Prosecutor has another choice. Does he want a jury? He doesn’t have to have one, the Sixth Amendment doesn’t apply (No Duncan). He opts for one.

                  The jury is empaneled. It’s all white men, blacks were systematically excluded because it was based on voter registration. There is no judicial remedy for this. Women weren’t called at all. After a few awkward hours of trial and a few minutes of deliberation, they convict. They decide not to impose the death penalty though. But whoops, the judge is up for election he overrides and imposes one anyway (No In Re Winship which led to Apprendi, Ring, and Hurst).

                  He doesn’t have an appellate lawyer. He’s placed in the adult population where he is repeatedly raped by the guards. If he could get a complaint filed the Court would say its neither cruel or unusual punishment.

                  He’s whisked away eventually and electrocuted. His eyes pop out and his skin starts to burn and smoke comes from his head. He never turned 18.

                  Back at the white public school where his former GF still is, she’s praying. She’s Jewish but has to say a Christian prayer anyway because the school is making her (No Vitale). She wonders if she can make the world a less cruel place and sadly realizes she can’t.

                  Bob’s perfect world.

                  1. Damn LTG, you seem energized and feisty today. 🙂

  3. A large part of the problem stems from the HS and the lack of policing by honest climate scientists. The multitude of HS reconstructions are viewed by most honest scientists as circumspect at best.

    The defense of sketchy work taints the credibility of the entire climate science field

    “You cant know where you are going if you dont know where youve been” is very appropriate in climate science and the perception (likely valid perception) that the past is intentionally misrepresented to further political aims does help the credibility of the scientific field.

    1. “the lack of policing by honest climate scientists” Show me an “honest” climate scientist. I’ll wait.
      As soon as Mann made the statement “massage the data”, I knew it was pure bullshit.

      1. Briffa has made some attempts, see his revisions to the yamal controversy

      2. “Show me an “honest” climate scientist”

        Judith Curry. Roger Pielke. Michael Shellenberger.

        Those three probably don’t even agree with each other in all areas, but they all at least are trying to insert some sanity in the discussions around the climate.

        1. bevis the lumberjack
          October.13.2021 at 11:45 am
          Flag Comment Mute User
          “Show me an “honest” climate scientist”
          >Judith Curry. Roger Pielke. Michael Shellenberger.<

          Concur –

          Though the less than honest climate scientist consider them to be deniers – blashemy

  4. “consign the planet to a fiery doom than find a different way to pay for mega-yachts.”

    We are living in an age of self-satire. Kafka would be jealous.

    1. Kafka would starve to death

    2. Since you don’t have a right to pollute what is not yours, it’s a perfectly reasonable use of democracy to decide on limits to these kinds of things. There should indeed be trade offs between benefits of a strong, rapidly advancing economy with technology, as set against downsides of pollution.

      The industrial revolution choked people even as the general wealth increases lead to rapid progress in reducing death rates and thus average lifespan extension.

      Crushing that economy for the environment would have been mass murderous.

      But that is the domain of voters and Congress.

      Letting lawsuit free for alls try to dictate things like 217 safety stickers on a ladder is completely the wrong way to go about it, because it replaces the reasonable use of democracy to weigh benefit vs. downside and replaces it with judges and lawyers, and any kept audience of jurors they can sway.

      Speaking of megayachts, there are many awaiting construction for the first lawyers who get this kind of anti-democratic crap to stick.

  5. That group has balls.

  6. If I burn gasoline with my car’s engine, it may be hard to say that I am not liable for the emissions, but the gas station, or the gas station’s supplier, or the refiner, or some petroleum producer is. On the other hand my electric car produces no emissions, so I am in the clear, but the electric power generating company isn’t.

    This seems to produce incentives favoring gas powered cars over electric vehicles.

    Is that really the desired result?

    1. Why wouldn’t you want incentives against pollution laundering? It’s not like electric vehicles are cleaner, net, once you take into account all the losses in generation and transmission.

      They could be, if we made more use of nuclear, of course.

      1. “They could be, if we made more use of nuclear, of course.”

        idk if this is true either. There are a lot of materials that require huge machines than go into a nuclear plant these days for safety. Also, uranium refining etc. Maybe. If the plant last 60 years. Hard to say.

        1. Well, they do last 60 years, unless shut down prematurely for no good reason.

          1. They are not really supposed to last that long. The 100 nuclear plants in the USA are all well beyond their designed life.

            1. Well, sure, but they HAVE lasted that long. Mostly a consequence of being over-designed in the first place, of course.

              A lot longer than windmills and solar farms last, in practice.

    2. mining all the copper and lithium in your electric car used a lot of emissions, are you liable for that? How about all the fossil fuel used to charge your battery? What about all the methane produced by the cows you ate for dinner, or the fossil fuels that went into the fertilizer necessary for you to eat the corn/wheat in your burrito. The only way to “save the planet” is literally to kys.

    3. No, it is not the stated policy goal. But the strong push to drive the US fleet to plug-in electric will also push the demand for increased use of fossil fuels to provide that electricity. Right now the economics are highly disfavorable toward nuclear power and these plants take a long time to build and license

      1. That’s actually why the economics are so disfavorable: You can’t just take a pre-approved plant design off the shelf and build it, every plant is unique due to regulations changing, and every time they change the regulations again in mid-build, you have to comply with them by tearing stuff out and rebuilding.

  7. We will know beyond a wriggle that Balls and Strikes commentary is “overheated and inaccurate” when its authors debut as guest-bloggers for the Volokh Conspiracy.

    (So far as I am aware, Prof. Adler is not responsible for selecting guest-bloggers at this White, male, movement conservative blog.)

    1. Your repeated comments displaying your hatred for all things not to your liking begs the question: why are you here? Just follow the balls and strikes blog so you can be at one with those who have a similar disdain for the law, the courts and anyone whose positions fail to meet your standards.

      1. bigot, noun:

        a person who is intolerant of differing opinions and beliefs

        Google’s definition for the word used to be something like that almost verbatim, it has changed in the last year.

        1. Weird def you got there – bigotry is not generally about opinions or beliefs.
          Closest you can get is religion, but even that is taken as an intrinsic value in this context.

      2. It’s a marketplace of ideas.

        May the better ideas win.

        Of course, that’s easy for me to say.

        1. Do they win because they are better? Or are they better because they win?

          A quick look at history shows the rare instances of democracy, or something close to it, inevitably always fail once “better ideas win”, such as granting the executive emergency powers, which they never give up.

          We have not existed long enough as a country to even begin to dream democratic control of freedom is some indefinite prophylactic against this collapse. Rather, given the above mentioned history, we should be terrified of transient hot air pushes by the power hungry.

          “An emergency is a terrible thing to waste!”

          No, it is the best time to waste, do indeed waste the covetous power expansions of those with a deep, vampire hunger for power.

          1. Democracy inevitably leads to a diminution of liberty. The two things are really not compatible.

  8. Someone is going to be an example in an article about how legal academia, and conservative legal academia in particular, has an interest in maintaining the pretense about courts being apolitical.

  9. Does Adler live in some sort of Fox News bubble that he thinks institutional Democrats are actual leftists? Yawn.

    1. Your side calls every single GOPer an extremist and/or “far right”.

      Every Dem in Congress is to the left of every GOPer.

      1. That’s blatant BS. Cheney isn’t referred to that way. Nor any of the other anti-Trump GOP centrists. They’re just super-rare these days, but they do exist.

        1. Liz Cheney Is Not Your Friend Just because she’s not getting along with Trump and Kevin McCarthy doesn’t make the current Cheney any less of a vitriol-spewing extremist.

        2. Liz and Dick Cheney Are No American Heroes If they’re the conscience of the Republican Party, then the post-Trump era will be just as destructive as the past four years were.

        3. LOL The Nation, some opinion piece, and the New Republic.

          Brett’s weak response damns him.

          1. I wouldn’t claim to have produced a random, representative sample, but in what world are the Nation and the New Republic not reasonable examples of left-wing thought?

            1. Methinks you and I have a disagreement on what counts as representative of Bob’s ‘your side’.

              Smacks of when Prof. Bernstein talks about the ‘far left’ and inoculates himself from counterexample by tuning what far left means.

  10. There is a lot of dishonesty and overheated rhetoric from the climate hysterics. Has been that way for decades. Too bad there’s nobody with a voice looking for it. The parishoners in the Church of the Climate just eat it up.

    And no, this isn’t denial.

  11. Demand Justice’s Balls


  12. May I assume, therefore, that the demand justice article will be deemed “misinformation” and deleted from social media sites?

  13. To be fair, after reading other pieces on the “Balls and Strikes” website, they’re all as factually/logically challenged as the one that Prof. Adler singles out.

    There’s one about how it’s a good idea to harass Breyer to retire because it will make the people doing it feel good, even if it makes it less likely he’ll retire, which it takes armchair psychologizing to know even though they admit Breyer said it.

    1. That harassing Justice Breyer to retire pisses me off, as an American. He’ll retire when he is good and ready, or when his ticket gets punched by The Almighty. I don’t usually agree with his reasoning, but I appreciate the perspective he brings to SCoTUS.

      This bullshit harassing Justice Breyer? It ain’t gonna work.

      1. Are you unaware that partisans of all (relevant) stripes push judges to retire, or to begin senior status, in line with the electoral winds?

        I may even recall a few huffs and puffs in that direction from this White, male, Republican blog a few years ago.

      2. It will when they ramp it up enough, I expect. Depends on how good of Secret Service protection he has.

        1. These people harassing him forget he had extended family who died in the Shoah. He won’t bend, or break.

          1. Brett’s just a paranoiac who lives in a much more dramatic world than you or I.

            1. Yeah, I live in a world where maddened mobs literally claw at the Supreme court’s door, ‘protesters’ have decided that the front lawns of people’s homes and bathroom stalls are suitable venues for yelling at people, where maniacs attempt to assassinate the House Republican caucus.

              Why, what world do you live in? One where those things don’t happen?

              1. Don’t change your framing to yelling.

                You live in a world where Breyer is likely to be assassinated by the left.

                We don’t live in a political thriller.

                1. Do you know who James Hodgkinson is? Rene Boucher?
                  Michael Sandford? Sara Moore or Lynette Fromme?

                  I don’t think it is likely, personally, but I don’t discount the possibility. I suspect the crazies would put Kavanaugh or Barrett high on the hit list.

              2. Weirdly, the actual mob that attempted to overthrow the U.S. government at the behest of the outgoing president doesn’t even rate a mention in Brett’s fantasy.

                1. Because no such thing happened, except in your fevered imagination.

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