The predictability of Roberts' vote in Massachusetts v. EPA

JB

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]