There is Some Drama Brewing In San Francisco v. EPA

Today the Court decided one case, San Francisco v. EPA. As I predicted, the majority opinion was assigned to Justice Alito. (My other predictions for the other October sitting cases look to be on track.) But the breakdown was unusual. Here is the description from the syllabus:

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined, in which GORSUCH, J., joined as to all but Part II, and in which SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined as to Part II. BARRETT, J., filed an opinion dissenting in part, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.

The majority votes to reverse the Ninth Circuit. Justice Gorsuch does not join Part II, and does not write separately to explain why. But Justice Gorsuch does join Part III of the majority, which explains why the Court will reverse the Ninth Circuit. Justices Barrett, Sotomayor, Kagan, and Jackson only join Part II, but they do not join Part III. As I read the opinion, the Barrett quartet would affirm the Ninth Circuit. By all accounts, Barrett did not "dissent in part." She outright dissented. If anything she concurred in part, dissented in part, and dissented from the judgment.

I agree with Ed Whelan's analysis:

Justice Alito's majority opinion reverses the Ninth Circuit ruling. In what she labels an opinion "dissenting in part," Justice Barrett and the three justices (Sotomayor, Kagan, and Jackson) who sign on to her opinion "join Part II of [Alito's] opinion." But they disagree with his argument in Part III and thus would affirm the Ninth Circuit.

Perhaps I'm missing something, but it sure seems to me that Barrett's opinion is a straight dissent.

Relatedly: As I understand the traditional practice, any opinion that is a dissent in part must also be a concurrence in part. But the fact that Barrett agrees with part of Alito's reasoning does not mean that she concurs in any part of his judgment.

There is some drama brewing here. Justice Gorsuch did not explain why he did not join Part II. That failure to join would have rendered Part II as not part of the majority opinion. But the Barrett quartet came in to join Part II, making it a majority opinion. Yet, the Barrett quartet disagreed with everything else in the majority opinion, including the bottom line judgment.

There is another possibility. At this point, Justice Barrett's slide to the left is unmistakeable at this point. I wrote about this years ago, but people are slowly starting to see it. I don't think she will go full Souter, but will be, at best, a Justice O'Connor. Or maybe a Justice Frankfurter, whose only jurisprudence is one of restraint. For the time being, these sorts of locutions ("dissenting in part") mask the slide. At the end of the term, when statistics are assembled about Barrett's voting pattern, this case may be scored as a 9-0 reversal. But that scoring is only superficial. For those who care, on FantasySCOTUS, I scored this case a 5-4 reversal.

Early in her tenure, Justice Barrett urged us to "read the opinions." I've tried, truly. But she writes less than any other member of the Court. According to Empirical SCOTUS, Barrett writes the shortest opinions on average. She has only ever dissented from denial of cert once. And she is silent on the shadow docket. When Barrett does write separately, it is often unclear which parts of the majority she actually agrees with. The Trump immunity decision is a leading example.

Speaking of Barrett's writings, where is her book? The lucrative deal was announced in April 2021 before she had written a significant majority opinion. Four years later, the book is not on the shelf, and I cannot find a publication date anywhere. By contrast, Justice Gorsuch has already co-authored two books during his tenure, and Justice Jackson published her memoir within two years of her confirmation. Justice Kavanaugh's book deal was announced in June 2024, with a publication date in 2025 or 2026. I know people get upset when I talk about Barrett's publication record as a professor, but her productivity on the bench is much the same. She has not given any speeches of note in years, and had only a light-hearted conversation at the Federalist Society National Lawyers Convention in 2023.

Nominees for the Supreme Court do not change much when they join the Supreme Court. People are who they are. I say this not to criticize any current member of the Court, but so that we are all aware of what happens the next time a vacancy arises.

Update: A colleague wrote:

I don't think ACB's (and the other dissenters') move re Part II of the plurality opinion actually works. There are not five votes for that rationale among justices who also agreed with the judgment. Because Part II does not support any aspect of a judgment that a majority of the court agrees with, I still think it has the precedential effect of a plurality. It *might* be different if the judgment had changed because of Part II, but it didn't. And I don't think dissenters can make plurality opinions majority opinions just by "joining" that part of the opinion any more than they can do so by expressing their agreement with that part in dissent.

Whatever the intent was, I don't think it succeeded.

Comments

[Dr. Ed 2]

"At this point, Justice Barrett's slide to the left is unmistakeable at this point"

Damn...

Why is it that justices ONLY go left?!?
You'd think that a few would go right...

[wvattorney13]

Or you think a Dem president would at least get one wrong from time to time. When is the last time a Dem president picked a Justice who tricked everyone and turned out to be right leaning?

You think this would be easy for Republicans to vet these candidates and get someone solid. But we end up with Barrett, Roberts, and to a lesser extent Kavanaugh---not to mention Kennedy, Souter, O'Connor...all the way back to Earl Warren and William Brennan. The list keeps going on.

[Bob from Ohio]

JFK with Whizzer White.

[wvattorney13]

Eh. White was wary of substantive due process but the whole body of his work was rather moderate to left leaning in a lot of cases. He was pretty much in lockstep with the Warren Court.

[Bob from Ohio]

White wrote the majority opinion in Bowers v. Hardwick and dissented in Miranda, Roe v. Wade and Planned Parenthood v. Casey. Not bad.

He was never Clarence Thomas but he drifted right.

[Dr. Ed 2]

JFK was probably to the right of the Bushes.

[David Nieporent]

But we end up with Barrett, Roberts, and to a lesser extent Kavanaugh-

All staunch conservatives. But also small c-conservative; they're not trying to rewrite the entire U.S. Reports with each opinion they issue.

[Patrick Henry, the 2nd]

No they are _pretend_ conservatives. They pretend to do conservative things, and once and awhile they do. But they mostly undermine conservative things.

[Noscitur a sociis]

There are two factors at work. First, since at least the end of World War II, mainstream views in the legal profession generally, and the elite legal profession in particular, have been much more aligned with what liberals expect from judges than what conservatives want. Democrats could pick qualified lawyers at random and be pretty confident that they’re going to get someone they’d be generally fine with, and can be virtually certain that they’re not going to get a conservative as long as they don’t pick someone who is very obviously identifiable as such.

Second, Democrats have had fewer opportunities to make mistakes: since Eisenhower, they’ve had half as many appointments as Republicans.

So given that it’s less likely for there to be an error, and fewer opportunities for errors to occur, I don’t think there’s anything surprising about seeing less of them.

[David Nieporent]

There's a third factor, which is that right wingers are arguing in bad faith. If a conservative wants to complain about Souter, that's one thing. But the complaints about Roberts, or Barrett, or Kavanaugh "moving to the left" are not even attempts to make legitimate arguments. At best they're attempts to "work the ref," and more likely they're just a reflection of abject stupidity. The job of a justice — to state what shouldn't need to be stated — is not to deliver the votes that someone would cast if he or she were a politician. They are not "squishes" if they don't vote the way one's ideological priors desire; they're just judges rather than politicians.

[Noscitur a sociis]

Yeah, I was thinking of Kennedy and Souter. Agree that we haven’t had anything since they would surprise anyone who spent a very small amount of time looking.

[Noscitur a sociis]

Barrett’s jurisprudence is exactly what you’d expect from a normal conservative law professor. If you pick your judges based on politics and owning the libs rather than understanding jurisprudence, that’s the kind of thing that can happen.

[Bob from Ohio]

She was picked to provide the killing vote against Roe.

[Frank Drackman]

She aborted abortion

[Dr. Ed 2]

Law Professor...

I was trying to figure out her facial expressions during Trump's speech tonight -- and law professor upset at a student she respects makes sense.

[Riva]

Someone gave him bad advice and President Trump made a big mistake with Barrett. Fortunately, he is not likely to repeat that mistake if the opportunity arises for a new nomination.

[Bob from Ohio]

She voted correctly in Dobbs, which was why she was selected.

She gets some rope because of that, a vote in some obscure administrative law like this means nothing.

[Noscitur a sociis]

At this point, Justice Barrett's slide to the left is unmistakeable at this point.

Nominees for the Supreme Court do not change much when they join the Supreme Court.

This fucking guy.

[Chris13xy]

It’s so burns Josh that a girl has a job that he thinks he would be better at

[mse326]

1) It isn't difficult to see why they concurred with part II. They wanted it to be part of the holding and it was a necessary holding for their dissent.

2) Gorsuch almost certainly didn't join it because it was unnecessary to his, and frankly the majority's, holding.

By the way, a competent blogger would have at least given a brief description of what the two parts in question said when trying to give a reason why the Justices voted as they did.

[wvattorney13]

The question for the academics: Is Part II binding precedent of the Court? I say no. It didn't command 5 votes that made up the opinion of the Court.

[JoeFromtheBronx]

Alito, according to the opinion, wrote the "opinion of the court."

[Noscitur a sociis]

It didn't command 5 votes that made up the opinion of the Court.

How do you figure? According to the opinion it commanded 8 votes (all but Gorsuch).

[wvattorney13]

But it only commanded 4 votes in the majority. My understanding of the Marks rule is that what can command a majority of the court-- in the ruling of the Court--counts as binding.

I don't think you can count and cobble together dissenting votes to reach a binding precedent.

[Noscitur a sociis]

My understanding of the Marks rule is that what can command a majority of the court-- in the ruling of the Court--counts as binding.

Your understanding is incorrect. The Marks rule is about how to determine the holding of a case when “no single rationale explaining the result enjoys the assent of five Justices”. 430 U.S. 188, 193. It does not apply when five (or, as here, eight) justices endorse the rationale.

I don't think you can count and cobble together dissenting votes to reach a binding precedent.

Anything that commands the endorsement of a majority of the court is the court’s opinion. (Whether it is binding precedent or dicta is, of course, a different question.)

[David Nieporent]

I don't think you can count and cobble together dissenting votes to reach a binding precedent.

You're begging the question; if there are 5 votes for something, then they're not "dissenting votes." It's not the labels "concur" or "dissent" or "opinion" that matter; what matters is how many votes a particular holding has.

In this decision, Part II is not just preliminary musings; it makes a specific ruling about how a particular statutory provision is to be interpreted. And 8 justices expressly joined that ruling. It makes no difference that they did not join, or dissented from, other rulings contained in the overall decision.

[Jett's Pop]

But there are other basic questions you are omitting. Like what is a "holding." Part II of the opinion could have been omitted altogether without affecting anything. ("San Francisco makes two arguments. We do not reach the first because we agree with the second.")

Also, it is simply not true that everything that five or more Justices agree on cannot be (at least part of) a dissent. Six Justices in U.S. v. Guest (three in concurrence, three in dissent) agreed that Congress could reach purely private conduct in legislation passed pursuant to Section 5 of the Fourteenth Amendment. But the Court rejected that proposition in U.S. v. Morrison and rejected the proposition that one could cobble together votes from Guest in that fashion to create a precedent. If the three dissenters in Guest had said they were "concurring in part" with the concurrence, that really should not have made any difference.

So I actually agree with Blackman/Whelan that Justice Barrett's opinion is a plain old dissent, no matter what she called it.

[Noscitur a sociis]

The point isn’t what gerunds the justices put at the top of their separate minority opinions. The point is what opinions command the vote of a majority of the court—which was every word of Justice Alito’s opinion.

[David Nieporent]

But there are other basic questions you are omitting. Like what is a "holding." Part II of the opinion could have been omitted altogether without affecting anything. ("San Francisco makes two arguments. We do not reach the first because we agree with the second.")

Yes, the Court could've done that. But when it instead decides to address both, that doesn't make one of them dicta.

It was a reasonable antecedent question to answer here. After all, if the Court had come out the other way on II, then III wouldn't have been necessary.

[Area Man]

8 out of 9 members joined that part. So, yeah, that seems pretty binding.

[Bob from Ohio]

EPA and San Francisco.

Its another Iraq Iran War. Both sides should lose.

[JoeFromtheBronx]

"Justice Barrett's slide to the left is unmistakable at this point."

Barrett was recently in the conservative end of a 5-4 ruling. Her "slide to the left" is overall limited. Repeatedly, it is a matter of her joining the conservatives but not all the way. This might annoy JB but it is not quite O'Connor-land yet.

If we are going to single someone else in this case, it would be Gorsuch, who did not explain his vote. That does help JB's crystal ball act, but it is somewhat annoying.

Barrett says she "joins" Part II of the opinion of the court. How is that an "outright dissent?" Alito's opinion rejected one argument while accepting another. Barrett "dissented in part" by rejecting both arguments. She "joined" one part of the opinion.

She is silent on the shadow docket

Barrett has written multiple separate writings opining on the "emergency docket." See, e.g., her dissent in Ohio v. EPA (citing case). She also noted there:

Our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions. Given those limitations, we should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions.

Dissents from cert. are largely a way to hear yourself talk. I find them interesting, and they have their place. But, multiple justices have avoided writing separate dissents and statements.

It hurts that the current justices (except for once by Jackson) have included their speeches on the Court's speech website, but is there a list of notable speeches by all the other justices?

JB's pettiness on Amy Coney Barrett is a nod in her favor.

[JoeFromtheBronx]

It hurts that the current justices (except for once by Jackson) have NOT included their speeches on the Court's speech webpage but is there a list of notable speeches by all the other justices?

https://www.supremecourt.gov/publicinfo/speeches/speeches.aspx

Before the current court, the speech page [one of the more forgotten sections of the website] was basically used by Ginsburg and Stevens with Rehnquist also somewhat regularly using it when he was still around. A few other speeches were tossed in.

[MaddogEngineer]

JB's pettiness on Amy Coney Barrett is a nod in her favor.

Yes, in this kind of discussion. He's just emulating his contempt for the chief justice, but in an even more unreasoned, ignorant way.

Blackman has a difficult time recognizing any competing application of principles he does not share, preferring to call it unprincipled.

[John F. Carr]

He's like the people hating Manchin for being 90% Democratic instead of the 100% Democratic Senator they were entitled to.

[LawTalkingGuy]

You ever get the sense that JB’s most authentic self is Perez Hilton?

[SMP0328]

At this point, Justice Barrett's slide to the left is [unmistakable] at this point.

Barrett is a Conservative Justice. If she was sliding to the left, Roberts would have been able to convince her to join his middle-ground opinion in Dobbs. She is cautious and restrained. Barrett is always looking out for what will be the result of what other Justices want.

For example, she agreed with the majority in Fulton v. Philadelphia, 593 U.S. ___ (2021) but expressed reservations about overruling Employment Division v. Smith, 494 U.S. 872 (1990) out of concern that doing so would render Free Exercise Clause jurisprudence unworkable.

Barrett is not sliding to the left, but she is also not as gong-ho as Alito or Thomas.

[MaddogEngineer]

Perhaps her reservations about overruling Employment Division v. Smith are because Antonin Scalia wrote the opinion for the Court, and she clerked for him. As I recall, he expressed regret or repudiated his decision in that case.

I wasn't aware that Scalia was a disappointment to conservatives.

My goodness people need to stop judging how Supreme Court justices vote by their hyper-idiosyncratic ideological personal preferences.

[MaddogEngineer]

*he expressed NO regret

[Kazinski]

Its kind of stupid to try to pigeonhole every decision as Right or Left.

This was the EPA v San Francisco.

San Francisco won, and that's supposedly a right wing victory?

It was a highly technical decision based on the wording of the statute.

"We hold that the two challenged provisions exceed the
EPA’s authority. The text and structure of the CWA, as
well as the history of federal water pollution legislation,
make this clear. And resorting to such requirements is not
necessary to protect water quality. The EPA may itself determine what a facility should do to protect water quality, and the Agency has ample tools to obtain whatever information it needs to make that determination. If the EPA does its work, our holding should have no adverse effect on water quality."

[Frank Drackman]

These Chinese Restaurant Opinions, "One Dissent from Column A, One Concurrence from Column B" are so annoying, can any of you Surpreme Savants tell me if this is a 20th Century thing, or present from the beginning, I'd Oyez it myself but I'm dizzy from the market roller coaster today

Frank

[Noscitur a sociis]

By all accounts, Barrett did not "dissent in part." She outright dissented. If anything she concurred in part, dissented in part, and dissented from the judgment.

I’m not sure what “accounts” there are beyond the opinion itself. But at any rate, if you’d bothered to do a Westlaw search, you’d have seen that the Supreme Court doesn’t generally use “dissenting from the judgment”—it only appears three times this century.

By contrast, both Scalia and Thomas “outright dissented” in Grutter v. Bolinger, and certainly didn’t agree with the court’s disposition of the case. But, as Thomas put it, “ I concur in part in the Court's opinion. First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years.” 539 U.S. 306, 350-351. Their opinions are both styled “concurring in part and dissenting in part.” Id. at 346 and 349.

Update: A colleague wrote:

I don't think ACB's (and the other dissenters') move re Part II of the plurality opinion actually works. There are not five votes for that rationale among justices who also agreed with the judgment. Because Part II does not support any aspect of a judgment that a majority of the court agrees with, I still think it has the precedential effect of a plurality. It *might* be different if the judgment had changed because of Part II, but it didn't.

Was your colleague sick the day they taught law in law school? Or did they just attend South Texas College of Law? Part II was endorsed by a (super)majority of the court and is part of its opinion. It may or may not be part of the holding, as opposed to mere dicta. But that has nothing to do with the number of justices who signed on, or what else they thought about other aspects of the case.

[MaddogEngineer]

Any slide left by ACB only exists when one views Supreme Court decisions as binary partisan affairs, AKA which side's ideological position wins, ignoring any particular facts of a case.

For years, conservatives have railed against that paradigm of outcome based judging. Honest conservatives, anyway. Not nitwits who call for the chief justice to resign when a Democrat is in the White House. Originalists used to assert that it does not always yield particular ideological outcomes. Not saying ACB is a devout one, but certainly Blackman is not, given his team sport commentary.

The Trump/MAGA mindset corrupts everything it touches, left or right: victory over principle. I was reminded of that today reading a Bill Kristol tweet defending "trans rights", because Trump was against them. I still have Kristol's fawning interview with Justice Alito from a decade ago in my YouTube suggested video list, unwatched.

[MaddogEngineer]

Perhaps a more relevant inquiry, instead of focusing on Justice Barrett's ideology, is to ask why Justice Alito couldn't craft an opinion that was able to solidly claim 5 votes in this case. Maybe because of its legal complexities. Maybe because it's a recurring problem with him.

[Kazinski]

But nobody else could either.

[MaddogEngineer]

How would we know that, exactly?

Certainly the opinion result is complex. Going through such an analysis would have been a more fruitful exercise than choosing to focus on Barrett's alleged ideological drift. Blackman tries to construct an argument about that from the box score. Without ever delving into the particulars of why Barrett disagreed with Alito (and the nominal majority). Blackman quotes Barrett as suggesting her critics read her opinions, yet he doesn't bother to read her here. While claiming to have read others. Again, without actual evidence, just his preferred statistics.

[Kazinski]

You don't know how it works?

If Barrett got 5 votes for her opinion that would have been the majority.

Gorsuch might have written an opinion without the Part II he wouldn't join, if that got 5 votes then Alito's opinion might have been a 4 vote concurrence.

We know it because it didn't happen.

[Noscitur a sociis]

Perhaps a more relevant inquiry, instead of focusing on Justice Barrett's ideology, is to ask why Justice Alito couldn't craft an opinion that was able to solidly claim 5 votes in this case.

That seems like a very strange question to ask, since at least four other justices signed onto every word of his opinion, and seven others signed on to part of it.

[ReaderY]

This is one of the seemingly rare cases lately where I find myself agreeing with Professor Blackman.

The 4 dissenters disagreed with the court majority on the holding. The dissenters would have upheld the 9th Circuit decision. The fact they agreed with the majority that some of San Francisco’s arguments (the ones discussed in Part Ii of the majority opinion) didn’t hold water doesn’t change this.

Statements irrelevant to the holding are dicta. Because the dissenters would have held for San Francisco, their opinion that certain of San Francisco’s arguments were invalid is dicta so far as these four were concerned. It’s as dicta as dicta can be. It meets the definition of dicta very clearly, a textbook example. Since it’s dicta, this means their support of it has no precedental value.

Because Justice Gorsuch dissented from Part II, it seems to me that there were only 4 votes to consider Part II a non-dicta part of the holding, and thus as having precedental value.

I think this makes Part II a plurality opinion so far as precedent is concerned.

[David Nieporent]

As I explained a few weeks ago, Supreme Court dicta isn't really dicta at all. It's like 95% as precedential as Supreme Court ratio decidendi.

And your understanding of dicta (or perhaps of "holding") isn't right anyway. There is an 8-1 holding that § 1311 of the CWA allows non-effluent limitations to be imposed. That this isn't sufficient for the City to prevail does not make it "dicta." There is also a 5-4 holding that § 1311 does not allow the specific requirements the EPA tried to impose on the City.

[Mr. Bumble]

An argument for or against a larger SC?

[Noscitur a sociis]

No.

[ReaderY]

You may be right about it being only 5% and not 95%. But the distinction makes a difference all the same. If the composition of the court changed, the new majority could rule differently without having to worry about stare decisis. And if a lower court wanted to stall things in the hopes of a change in Supreme Court composition, it could do so without being gulty of ignoring binding precedent.

Perhaps both scenarios come in the 5% and not the 95%. But they are plausible scenarios, with real consequences, all the same.

[Noscitur a sociis]

But this has nothing to do with Prof. Blackman’s claims. Whether or not section II is dicta depends on what it says and the rest of the opinion, not which combination of five or more justices signed off on which part.

[Kazinski]

I am not sure this decision is either right or left, and it happens to be a subject I know quite a bit about. I used to work for Seattle Public Utilities, and write systems that monitored Combined Sewer Overflows (CSO).

Combined Sewer Overflows are when municipal effluent water treatment system is combined with its storm drain system, and there is a storm event that overwhelms the capacity of the water treatment facility to process the combined sewage and runoff.

Seattle would frequently have CSOs and then untreated sewage would end up in Lake Washington or Puget Sound, and they would be in violation of their permit. The violations are not intentional and can't be helped, and are very expensive to prevent. In fact Seattle had a had one project that cost over a .5 billion in progress to remediate the problem, and spent over 115 million on capital remediation projects in 2023. That's a lot of money for a city to spend, and be paid for in your water bill, but if I recall there were also federal grants.

If you are aghast at the idea of raw sewage going into bays or waterways, you aren't alone, but to put it into context Victoria BC didn't treat its sewage until 2017, it was just filtered for lumps and dumped in the sound.

Alito's opinion basically held that as the statute was written the EPA could set the conditions for operating the plants to achieve the desired result, but could not mandate the result, which SF, and Seattle are trying their best to achieve.

"Held: Section 1311(b)(1)(C) does not authorize the EPA to include “end result” provisions in NPDES permits."

[Tom Smith the Lesser]

"The violations are not intentional and can't be helped, and are very expensive to prevent."

To the contrary, they are quite intentional. They are by design. That defines intentionality. That is why there are overflow pipes and discharge points to the Bay and Sound. You seem to recognize this with your reference to Vancouver BC's system.

The fixes are expensive as you suggest, However the $half billion so far and $0.1 billion in '23 are mere pikers compared to the nearly $150 billion (and rising) cost of the light rail from SeaTac to Redmond. And that includes a hole in the downtown big enough to carry several sewage pipes and storm flow pipes!

So there is expensive and then there is expensive. Lack of money does not seem to be the problem. But shit in the pipe is not as glorious as people in the trains from MSFT to the Pike St Market!

You write like a flack for the SPU for which you are forgiven. But you need to be clear that this is all about priorities, not expense (at least not all due to expense). If is a choice and poop into the deep waters is out of sight and out of mind. Traffic jams on the highways is something else.

[CommentMonkey]

Blackman's theory is that Barrett labelled her opinion a "partial dissent" in order to "mask the slide" she is supposedly making leftward. But if the opinion was labelled a "partial concurrence and partial dissent," that would have made her appear closer to agreement with Alito et. al., which would "mask the slide" even better! So, no, she's not trying to mask the slide.

What is particularly objectionable here is the cheap attack on Barrett for writing opinions that are too short, not publishing her book quickly enough, and not giving enough speeches. I believe one would be hard-pressed to find a serious conlaw scholar who believes the problem with this court is that the opinions aren't long enough. I see no serious argument that her opinions are less thorough or well-reasoned than those of her colleagues. So the opinion length thing is just a cheap shot.

I have no idea why her book hasn't come out as quickly as Blackman would like, but as long as she's succeeding in her day job, who cares? Ditto the failure to give enough speeches or fire off angry missives in response to denials of cert.

One reason this attack on Barrett's lack of "extra-curriculars" strikes me as so mean-spirited is that Barrett is raising seven children, including some still of school age, and one with special needs. Do we really think it is incumbent on Supreme Court Justices to skip out on family obligations to tour the country rallying Federalist Society crowds? On balance, it strikes me as healthy to have court members who don't eat, sleep and breathe constitutional law and who are content to speak through tight, carefully written opinions. Blackman would be better served to confine his attacks on Barrett to substance.

[ReaderY]

I think it’s perfectly fair to say at this point that Barrett is somewhat to the left of Alito and Thomas. I don’t think it’s a cheap attack. It’s accurate.

Professor Blackman may be extremely unhappy that Barrett has come out this way. He may have been wishing she’d come out as Justice Thomas’ long-lost twin sister. But that’s his problem, not Justice Barrett’s or ours.

[ReaderY]

And Professor Blackman may at this point consider anyone to the left of Justice Thomas a leftist who doesn’t possess a soul. But that’s also his problem, not ours.

[CommentMonkey]

But he didn't criticize her for being to the left of Alito and Thomas. He criticized her first for sliding to the left and using the "partial dissent" nomenclature to hide it. He offered no evidence that she's sliding, as opposed to deciding cases as she always has. And his evidence that she's trying to "mask the slide" was exceedingly weak.

Next, he implied she doesn't work hard enough because she doesn't complain about denials of cert., writes concise opinions, doesn't give enough speeches and hasn't published her book quickly enough. That's the cheap shot.

[bernard11]

IIRC, Blackman was practically infatuated with Barrett when she was appointed.

Not quite apt to say. Maybe Hell hath no fury like a con law professor scorned.

[ReaderY]

Is that the kind of law the current administration specializes in?

[ReaderY]

[Commenter_XY]

Speaking of Barrett's writings, where is her book?

Do you have children, Professor Blackman. Justice Barret has seven (yes 7). You can cut her some slack.

[Kazinski]

Here is a hypothetical to show why Alito is right.

Say the court allowed the EPA to set strict standards for discharges from water treatment plants in California along the Pacific coast. And since there is a water treatment plant not only treating municipal sewage but also a nuclear power plant at Diablo Canyon it also include a radiation limit to protect fish and sea life near the discharge outlets in the standards.

San Francisco treats sewage and its mixed with srorm water runoff, now say China or Russia conducts nuclear test that discharges radiation into the atmosphere and a storm system carries that radiation to SF and it drops 2" of rain on SF that exceed the EPA's allowed radiation standard.

San Francisco has neither capacity to store that much water, or any place to divert it to for treatment or remediation, nor any filters that might be able to pull out any radioactive isotopes.

Yet if it violated the EPA's end result standard It would be strictly liable for not meeting the EPA standards.

Under Alito's decisions the EPA would be able to mandate what filtration, and treatment equipment would be required at the plant which would take care of any anticipated pollutants but SF would not be held responsible for unanticipated pollutants, or situations where the level of pollutants overwhelms its mandated treatment requirements.

[ReaderY]

Why is a permit to discharge only if the level of other pollutants is sufficiently low any different from permitting a pilot to move forward only if there aren’t other planes occupying the runway?

And why is holding San Francisco responsible if there aren’t other pollutants in the area but it discharges anyway any inherently more unfair than holding the pilot responsible if there are other planes on the runway but he moves forward anyway and crashes?

If it is unfair to make a permit-holder responsible for the end result and have to conduct themselves based on what others are doing, if it is unfair not to base permits exclusively on the permittee’s own conduct regardless of what others are doing, then are traffic laws ever fair? They frequently make rights of way and other permissions conditional on what else is going on. Indeed, any traffic-law regime that holds motorists responsible if they don’t look out for what others are doing and base their conduct on it would be unfair by that standard. Making motorists who can avoid a crash responsible for not causing one is precisely holding motorists responsible for the end result.

[Tom Smith the Lesser]

Kazinski spent a career spinning "its not fair!" tales to the Washington DOE. His example of radiation from Asia is so utterly stupid you should realize this. (I wonder if he ever convinced a DOE permit writer with such an argument?) No one is doing open air testing since decades!
But the entire point of discharge permits is - well beside treatment technology based end of pipe limits - to assure the water quality of the receiving water body is protected. That is called the Water Quality Standard. So, in fact, the discharger - SF here - is stuck with what others also put into the water body. If others are crapping in it, then you are gonna have to deal with it. That'll cut down what SF gets to put out. Life's a bitch then you have to separate the combined system and treat the stuff.

[ReaderY]

Question:

A control tower authorizes a plane to take off when the runway is clear. Is this permission to fly an “end result” permit? The permit to fly is conditioned not on what the pilot does but on factors completely outside the pilot’s control. Instead of limiting itself to telling the pilot what to do, the control tower is conditioning the permit on when an overall end result is achieved. Isn’t that exactly an “end result” permit as the Court majority defined it in this case?

Does a control tower have the authority to condition flight permits in this manner under the majority’s theory?

[ReaderY]

I suspect there may be traffic laws with similar general language permitting traffic commissions to impose conditions to ensure safety that an enterprising motorist might be able to claim no longer authorize any number of routine safety rules under the Supreme Court majority’s ruling. It would appear that any traffic rule that conditions a motorist’s permission to move forward on what other motorists are doing would constitute an “end result” rule.

Could one get out of a traffic ticket that way?

[David Nieporent]

You seem to have a bizarre idea that SCOTUS said that the government can't have end result rules, when all it actually said was that the Clean Water Act didn't authorize them.