The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of my least favorite words in legal discourse is "interesting." Sometimes it is a useful way to describe something of interest, but far too often it is a passive aggressive way of criticizing something. "Oh well that is very interesting." After reading West Virginia v. EPA, I will add another word to my list of disfavored list: "odd."
For example, Chief Justice Roberts included this line his majority opinion:
We find it odd that the dissent accuses us of champing at the bit to "constrain EPA's efforts to address climate change," yet also chides us for "mak[ing] no effort" to opine—in what would be plain dicta—on "how far [our] opinion constrain[s] EPA,"
The Chief does not explain why Justice Kagan's position is "odd." But the implication here is that the dissent is taking contradictory positions. Here, the word "odd" is a stand-in for "hypocritical."
If you ever find yourself using the word "interesting" or "odd" to describe someone who disagrees with you, immediately delete that word, and explain in a sentence why it is "interesting or "odd." If you find you cannot do so, without causing undue offense to the other side, delete the sentence altogether. Don't make a point through loose rhetoric that you are not willing to make directly.
Justice Kagan came out full-guns-blazing in West Virginia v. EPA. She snarked that the majority was motivated by a hatred of environmental laws. Here are some of her greatest hits:
Another of this Court's opinions, involving a matter other than the bogeyman of environmental regulation, might have stopped there.
It is EPA (that's the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time.
But under normal principles of statutory construction, the majority should ignore that fact (just as I should ignore that Congress failed to enact bills barring EPA from implementing the Clean Power Plan).
Kagan criticized the young and restless Thomas Court.
That leaves the Court in much the same place it was when deciding Massachusetts v. EPA. Said the Court then: "That subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming tells us nothing about what Congress meant" when it enacted the Clean Air Act. And so the Court recognized EPA's authority to regulate carbon dioxide. But that Court was not this Court; and this Court deprives EPA of the authority Congress gave it in Section 111(d) to respond to the same environmental danger.
Kagan also reached back to fault the Court for blocking President Obama's Clean Power Plan in 2015:
This Court has obstructed EPA's effort from the beginning. Right after the Obama administration issued the Clean Power Plan, the Court stayed its implementation. That action was unprecedented: Never before had the Court stayed a regulation then under review in the lower courts. The effect of the Court's order, followed by the Trump administration's repeal of the rule, was that the Clean Power Plan never went into effect. . . . . The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering. That new rule will be subject anyway to immediate, pre-enforcement judicial review. But this Court could not wait—even to see what the new rule says—to constrain EPA's efforts to address climate change.
Fun fact: the last action Justice Scalia took before his death was to stay the Clean Power Plan.
And Kagan felt compelled to defend her "We're all textualists" line.
Some years ago, I remarked that "[w]e're all textualists now." Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the "major questions doctrine" magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence
A conveniently-textualist Supreme Court? Like Bostock. Speaking of Justice Gorsuch, Justice Kagan trains much of her fire on the Coloradan's concurrence:
The majority opinion at least addresses the statute's text, though overstating its ambiguity and approaching the action taken under it with unwarranted "skepticism." The concurrence, by contrast, concludes that the Clean Air Act does not clearly enough authorize EPA's Plan without ever citing the statutory text. Nowhere will you find the concurrence ask: What does the phrase "best system of emission reduction" mean? So much for "begin[ning], as we must, with a careful examination of the statutory text." Henson v. Santander Consumer USA Inc. (2017).
If Henson does not ring a bell, it was Justice Gorsuch's first opinion. Ouch. From one Denver to another Denver: Snark me home, country roads, to the place I belong, West Virginia v. EPA.