Balkinization: The predictability of Roberts' vote in Massachusetts v. EPA

The predictability of Roberts' vote in Massachusetts v. EPA

Linda Greenhouse's meditation on John Roberts's dissent in the global warming case (Massachusetts v. EPA) concludes:

In 1976, four years into the Rehnquist tenure, Professor David L. Shapiro of Harvard Law School wrote a famous article that boiled the justice’s philosophy down to three premises: (1) in a case between the individual and the government, the government wins; (2) in a case between state and federal authority, the states win; and (3) when there is a question about whether a federal court has jurisdiction to decide a case (like whether the plaintiff had standing), the question should be resolved against jurisdiction (or against standing).

Those observations held up remarkably well during Justice Rehnquist’s tenure. But last week’s case placed the second and third propositions in irreconcilable conflict: the state could win only if it had standing.

Never having faced such a case, William Rehnquist did not have to choose between principles. For Chief Justice Roberts, limiting standing was more important than deference to the states, a choice rich with implications as the Roberts court continues to reveal itself.

It should not be difficult to see why limiting standing would be more important for Roberts than deference to states in environmental cases. As I noted previously, limited standing rules have two basic effects. First, they tend to strengthen executive power because they limit judicial oversight. Second, they tend to benefit businesses over NGO's and public interest groups because businesses challenging government regulations will find it much easier to demonstrate the harms to their profits that come from regulation. Federalism sometimes benefits business interests who want to avoid federal regulation, but where states want to establish more stringent regulations than the federal government does, businesses may prefer a uniform federal rule that sets a ceiling to further regulation. That is one reason why some business interests have pressed for federal tort reform regulation-- to preempt or block states with more populist views about business regulation-- and why they would resist state environmental initiatives seeking more stringent regulations than the Bush Administration EPA has been willing to adopt.

President Bush nominated both Roberts and Alito to the bench to promote executive power and business interests, and there is no reason to expect that either Justice will disappoint on this score. Federalism can and will take a back seat to both of these concerns.

Over time we will see both Justices demonstrate interesting quirks in their views that were not predictable at the time they were nominated. And sometimes, as in David Souter's case, Presidents know next to nothing about the candidate's views when the appointment is made. But this was not the case for either Roberts or Alito, who were far more carefully vetted.

At least in the short run, Justices usually conform to expectations on the core issues that a President is most concerned about when he makes the nomination. We may take Chief Justice Roberts at his word when he says that he wants a more consensus- oriented Court. But President Bush did not appoint either him or Samuel Alito to the Court to build consensus at the expense of those core substantive issues.

Posted 8:42 AM by JB [link]

Comments:

In 1976, four years into the Rehnquist tenure, Professor David L. Shapiro of Harvard Law School wrote a famous article that boiled the justice’s philosophy down to three premises: (1) in a case between the individual and the government, the government wins; (2) in a case between state and federal authority, the states win; and (3) when there is a question about whether a federal court has jurisdiction to decide a case (like whether the plaintiff had standing), the question should be resolved against jurisdiction (or against standing).

Those observations held up remarkably well during Justice Rehnquist’s tenure. But last week’s case placed the second and third propositions in irreconcilable conflict: the state could win only if it had standing.

Never having faced such a case, William Rehnquist did not have to choose between principles. For Chief Justice Roberts, limiting standing was more important than deference to the states, a choice rich with implications as the Roberts court continues to reveal itself.

How and why does Greenhouse make this leap?

Only Professor Shapiro's third premise concerning standing applies to this case and Chief Justice Roberts' well argued dissent conforms to that premise.

The second premise states: "In a case between state and federal authority, the states win." There was no issue of state power here. Rather, the states were seeking standing to bring a suit asking the Supremes to rewrite the CAA to compel the EPA to exercise federal power.

In order falsely accuse the Chief Justice of straying from his principles, Greenhouse has impliedly rewritten Professor Shapiro's second premise to state: "In any case between the states and the federal government, the states win."

If you cannot make the intellectual field goal, move the goal posts closer.

# posted by

Bart DePalma : 10:47 AM

I wasn't surprised by Roberts's vote, though my evidence is anecdotal. The fact that Roberts and Scalia split the dissents, with Roberts on standing and Scalia on the merits, was not surprising to me either.

I always figured that Roberts fancied himself a bit of a standing expert. He argued the Lujan case and won, and shortly thereafter published a rebuttal piece to some law professors defending Scalia's narrow interpretation of standing in that opinion.

To be fair and give some context, shortly after the Lujan decision Roberts left the SG's office to go to Hogan & Hartson, and it was the type of article partners write both for academic purposes and to attract clients. To be fair, as much of anything it may be been an announcement to anyone seeking appellate counsel--"Hey I'm John Roberts and I won Lujan and now I work for Hogan."

In any event, and his concurrence affirms it, I do think Roberts tends to believe in narrow, formal standing rules and that he is a bit of an expert on standing. Roberts didn't publish a lot of academic pieces, and even this one is short.

# posted by

Chris : 12:57 PM

For those interested, the article Roberts wrote on standing that I referenced can be found here:

Article III Limits on Statutory Standing, 42 Duke L. J. 1219 (1993)

# posted by

Chris : 1:40 PM

Roberts clearly recognized that the far-left activists who run Massachusetts were trying to build a legal case with nothing but smoke and mirrors. He, just like all right-thinking people, knows that carbon dioxide isn't dirty, so when those Massachusetts pinkos tried to write the word "pollutant" out of Section 108 of the Clean Air Act, he just pointed out that they didn't have a case. It's as easy as that.

# posted by

Bart Depalma Jr. : 2:42 PM

"In order falsely accuse the Chief Justice of straying from his principles"

It's funny (but not surprising) to see Bart defend Roberts against a charge of straying from "principles" that are completely and utterly corrupt. Roberts himself would never admit to adhering to such an anti-legal methodology.

# posted by

jqb : 2:00 AM

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# posted by

Anonymous : 3:25 AM

Am I missing something? In GMC v. Tracy, 519 US 278 (1997), the Court held that (1) a buyer of natural gas had standing to challenge certain pricing laws set forth by Ohio law, and (2) that those pricing laws did not violate the Dormant Commerce Clause. Chief Justice Rehnquist joined Justice Souter's opinion for the Court.

Would that not be a straightforward example of the Chief being confronted with both (to use Greenhouse's numbering): (2) a case between state and federal authority, and (3) a question about standing? The Chief sides with state authority on (2), and in favor of standing on (3).

To borrow Greenhouse's framework, Chief Justice Rehnquist picked the priorities opposite of Chief Justice Roberts's: He chose state authority over the limitation of standing.

# posted by

Unknown : 2:13 PM