A Last Ditch Attempt to Bring Kids Climate Case Back from the Dead

The plaintiffs in Juliana v. United States are seeking Supreme Court intervention to revive their case against the federal government.

When last we checked in on Juliana v. United States—the first "kids climate case"—the U.S. Court of Appeals for the Ninth Circuit had granted the Department of Justice's petition for a writ of mandamus and ordered the case dismissed. As I noted at the time, this order was unsurprising and quite warranted. That should have been the end of the matter—but it wasn't.

Last week, the Juliana plaintiffs filed a petition for a writ of mandamus with the U.S. Supreme Court seeking to vacate the Ninth Circuit's order and thereby revive the case for further proceedings in the district court..

The New York Times reported credulously on the filing, as if it had much legal merit or any realistic possibility of succeeding.

This kind of request to the Supreme Court is unusual, but the plaintiffs supported their position by arguing that the federal government had stymied the process with similar courtroom maneuvers over the years.

"Unusual" is quite the understatement, but it is true the plaintiffs "supported their position" with arguments—albeit arguments that are quite unlikely to prevail.

A better take can be found at at Legal Planet, where Professor Daniel Farber coldly observes "there is no chance that plaintiffs will get their writ from the Supreme Court." Farber explains:

First, even if the Ninth Circuit was wrong, granting mandamus is discretionary. From the perspective of at least six Justices, any procedural mistake by the Ninth Circuit was harmless error. I am certain that every member of the conservative majority, rightly or wrongly, views the plaintiffs' constitutional claim as  baseless. . . . From their point of view, the procedural question in Juliana is only whether the Ninth Circuit should have waited a little longer before doing the inevitable and killing the case.

Putting the issue of harmless error aside, there's a deeper reason why the plaintiffs will likely fail.  The district judge contemplates a lengthy trial about broad government policies, after which she would opine on their legality.  A recent Supreme Court case might illustrate why this is problematic.  The Supreme Court recently ruled that states didn't have standing to challenge a presidential policy on immigration enforcement.  Suppose that on remand, the trial judge proposed a lengthy public hearing broadly examining all aspects of the Biden Administration's immigration programs, which would be followed by a judicial thumbs up or thumbs down.  You can see why the Supreme Court might view this kind of wide-ranging hearing as raising separation of powers concerns.

The plaintiffs rely heavily on a case called Cheney that dealt with mandamus.  But there's another aspect of the Cheney case that the plaintiffs don't discuss: The Supreme Court chastised the lower court for slighting the serious separation of powers aspect of the case in denying mandamus.  I suspect that the Court will also think that putting an  immense swathe of government policy on trial also violates the separation of powers — especially in a case where they are  deeply skeptical of the underlying constitutional claim.

This is not the first time this case has been brought to the justices' attention, and there is no reason to believe that there is a single justice on the Court who believes the Ninth Circuit previously erred on being too quick to dismiss the plaintiffs' claims. To the contrary, on more than one occasion the justices signaled their displeasure with the Ninth Circuit's failure to rein in the district court. Given this background, to call the latest filing audacious would be an understatement.

From the start, the Juliana litigation embraced aspirational arguments that cut against the grain of contemporary constitutional jurisprudence (a point I develop in this symposium essay). It may have been a useful vehicle for raising awareness about the problem of climate change–it has certainly generated more than its share of favorable press coverage–but there was never much chance its claims would be embraced in the courts, the Supreme Court in particular. Indeed, the Juliana plaintiffs should be glad if the case ends with an unpublished Ninth Circuit order as opposed to a substantive repudiation from the Supreme Court.