Antithetical to Reasoned Decisionmaking
Achinthi C. Vithanage - Elisabeth Haub School of Law
Elisabeth Haub School of Law
Current Issue
Parent Article
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The tale of two dockets is not one that is often told in law schools. Indeed, as students dive into the mechanics of the nation’s highest court, one learns only of the merits docket. This is the ordinary nature of the Supreme Court’s proceedings, where cases are granted review by four justices and which subsequently proceed to months-long briefings, oral arguments, and a majority opinion with detailed explanations for a given decision. But until recent years, the non-merits docket, with its fondness for caseload management, or the issuance of minor routine orders such as time extensions, was hardly newsworthy.

Today’s non-merits docket, however, contains a tale revealing the worst of times in the High Court’s jurisprudential history.

This tale of two dockets describes the extraordinary way in which the Supreme Court can make stay orders, without substantiation or transparency. Granted on rare historic occasions, emergency stay orders had been by no means a regular practice of the Court. But today, the justices are increasingly willing to permit or block agency action without explanation, by simply granting or denying motions to stay.

The above practice is the shadow docket, a phrase coined by Professor William Baude. Recent expanded use of the non-merits docket in this way rings warning bells for many. Indeed, the notion of unreasoned court orders seems antithetical to one of the core elements of the rule of law, one often touted by the Supreme Court in the administrative context: the duty to engage in reasoned decisionmaking.

Notwithstanding Supreme Court Justice Samuel Alito’s recent denial of anything “shadowy” going on in the Court’s use of this procedural function, there are dark implications for the environment. Recall the Supreme Court’s surprising intervention with the Clean Power Plan rule in 2016. In overruling the D.C. Circuit Court’s decision to keep EPA’s regulation to cut carbon emissions from power plants in place pending further review, Chief Justice Roberts, for the first time in the Supreme Court’s history, issued a stay on regulations before an initial review was conducted by a federal appeals court. No arguments were heard, nor a formal opinion given by the Court. However, four justices did feel compelled to note their objection to the order.

Or recall the 2018 Supreme Court stay order, issued without explanation, which effectively halted discovery and trial in the Juliana case, a constitutional climate lawsuit brought by youth plaintiffs against the U.S. government.

In 2019, when the Sierra Club secured a win against the Trump administration’s plan to fund the U.S.-Mexico border wall with Defense Department funds, the Supreme Court intervened by granting the government’s application for a stay with a mere sentence providing the reasoning for the decision. The result: the building of environmentally destructive barriers across wildlife refuges, national monuments, public land and waters, and through communities in multiple states.

In short, the multitude of stay orders issued in the last five years is irregular. The tilted appearance of those decisions in favor of certain administrations is apparent. The lack of reasoning and transparency in those decisions is unbecoming of the highest arbiter of this land. The shadow docket is, unmistakably, a cause for concern for an administration seeking strong environmental regulation.

While the tale of two dockets seems to be here to stay, the tale can certainly be retold. The Biden Commission, tasked with exploring Supreme Court reform, recently concluded its review and included, among its suggestions, an invitation to the Court to consider proposals “that may increase transparency, improve procedure, and generate more visible adherence of judicial ethics.” Indeed, recent actions by the Court, such as the accompaniment of its refusal to stay Maine’s vaccine mandate, with concurring and dissenting opinions, provides a glimmer of transparency and reasoned decisionmaking.

Whether this marks the beginning of a trend bringing the non-merits docket out of the shadows, it is too soon to tell.

Shadow Orders Keep Courts in Line
Jonathan H. Adler - Case Western Reserve University
Case Western Reserve University
Current Issue
Parent Article
Headshot of man with glasses and suit and tie

The Supreme Court’s opinions in argued cases may attract the most attention, but they are only a small part of the Court’s overall work. In a given term the Court may decide 60 or 70 argued cases, but it will consider and rule on petitions and motions in thousands more. It is these other decisions that make up what is often referred to as the shadow docket. Although it has been around since the nation's founding, this portion of the Court's work is suddenly controversial. There has been a dramatic increase in the number of cases in which the Court has been willing to provide emergency or extraordinary relief through orders issued without argument.

The vast majority of shadow-docket orders are denials of one sort or another, such as the denial of a petition that the Court hear a case. A smaller portion consists of consideration of pleas for extraordinary relief, such as granting stays or injunctions or vacating those entered by lower courts. The Court denies most of these requests as well, but it is the growing number of exceptions that attract attention.

Scholars debate the reasons the justices seem more willing to grant extraordinary relief, and whether the increase is a problem. The lion’s share of relevant cases involve tight timelines or extenuating circumstances, as is the case with election contests, executions, and temporary Covid measures. Many seem to involve a disconnect between the current justices and lower courts, as when the Court has vacated lower court injunctions and stays of execution where such orders had not met the relevant standard for judicial relief. In such cases, the Court is fulfilling its obligation to superintend the federal court system, and ensure lower courts are using their equitable powers appropriately.

Where lower courts step out of line, the justices are sometimes moved to act. This occurred with Juliana v. United States, the so-called “Kids Climate Case,” in which the Supreme Court twice signaled to lower courts its displeasure with the course of the proceedings.

Juliana was likely the most ambitious and aggressive climate change suit filed to date. Among other things the plaintiffs claimed the federal government violated their substantive due process rights to life and liberty by failing to control the emission of greenhouse gases. Juliana presented audacious claims, but it took more than aggressive pleadings to stir the justices into action.

The solicitor general only sought Supreme Court intervention after the district court denied the federal government’s motion to dismiss and blocked an interlocutory appeal, setting the stage for intrusive discovery requests against the federal government, and the appeals court refused to intervene. On the SG’s second try, the Court issued an order denying relief, but making clear a majority of justices believed the district court was out of line. The lower courts got the message, and the case was ultimately dismissed on standing grounds.

The justices also used the shadow docket to put the Obama administration’s Clean Power Plan on ice. As with Juliana, the Court’s intervention is best seen as reactive, here to maintain the status quo so as to ensure courts would have an adequate opportunity to consider challenges to EPA’s aggressive regulatory plan. In a prior case, Michigan v. EPA, judicial review was effectively thwarted, as the agency’s rule was held unlawful only after compliance had been achieved. The folks at EPA celebrated this fact, and it appears the justices were not amused and sought to prevent a repeat occurrence. In this regard, the Court issued a stay so as to preserve its ability to engage in meaningful judicial review.

The Court’s forays into the Juliana and Clean Power Plan litigation were unexpected. They may also be a sign of things to come. In both cases, a majority of the Court exhibited impatience with aggressive judicial or regulatory moves responding to the threat of climate change without express congressional authorization. This is further evidence it may take legislative action to get climate policy on course, and keep it out of the shadows.

The Shadow Docket
Robert V. Percival - University of Maryland Law School
University of Maryland Law School
Current Issue
The Supreme Court Justices in front of mountain scenery

Six years ago, the Supreme Court made an unprecedented intervention in an environmental case, derailing the most important U.S. effort to combat the global climate crisis. Because the petitioner had made an emergency motion, the Court dispensed with plenary review and oral argument in staying the Obama administration’s Clean Power Plan to control greenhouse gas emissions from power plants. Using what is now known as its shadow docket, the justices voted 5-4 to reverse a unanimous decision by the D.C. Circuit to let the regulations take effect while it heard legal challenges to them.

In the last year, the new conservative super-majority on the Court has come under fire for several shadow-docket decisions. It blocked local Covid prevention mandates as infringements on religious liberty, struck down the Biden administration’s extension of the Centers for Disease Control’s eviction moratorium, refused to block a Texas law that effectively bans abortions, and denied the Biden administration’s request to stay a district court decision dictating immigration policy. These actions have provoked strong criticisms from dissenting justices. Justice Breyer told an interviewer that the refusal to block the Texas abortion law was “very, very, very wrong” and that “it’s a huge mistake to decide major things without full argument.”

Responding to the same decision, Justice Kagan attacked the Court’s use of the shadow docket: “Today’s ruling illustrates just how far the Court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals — which is right now considering the same issues.” Kagan went on to blast the hurried process. The Court, she said, “has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”

In conclusion, Kagan chided the majority for a decision she called “emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

Most orders the Court issues involve routine matters of case management, and the Court has issued them since its very first term in 1790. But in recent years the Court has used the shadow docket to make highly consequential legal decisions without benefit of plenary review. These orders do not reveal any of the votes unless some justices insist that their dissents be noted. Usually they include little or no explanation of whatever legal reasoning produced them. Many of them, like the decision to block the Clean Power Plan, are rulings on motions for stays that can dramatically change the status quo. Law professor Portia Prado has described judicial stay decisions as “nearly a law-free zone” because of the absence of uniform, principled standards to guide courts and the dearth of written opinions explaining the legal reasons for them.

During a House Judiciary Committee hearing on the shadow docket last winter, concerns were expressed on a bipartisan basis. But when the Senate Judiciary Committee held a hearing on the shadow docket seven months later, Republicans portrayed it as a partisan issue. Senator Ted Cruz (R-TX) argued that “shadow docket” is an “ominous term” invented by Democrats in an effort to intimidate the Supreme Court because “shadows are bad.” The following day Justice Alito pushed back against critics even more harshly in a speech at the University of Notre Dame. Alito declared that “the catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.” He maintained that “this portrayal feeds unprecedented efforts to intimidate the Court or damage it as an independent institution.”

The term shadow docket was coined by University of Chicago professor William Baude in a 2015 law review article. A former law clerk for Chief Justice Roberts, Baude initially entitled the article “Paying Attention to the Orders List.” He changed the title after “a good friend convinced me that nobody would read or cite it.” The new headline was “The Supreme Court’s ‘Shadow Docket.’” Under that rubric, Baude criticized shadow-docket orders and summary decisions for lacking the transparency of cases decided after plenary review. He characterized most of the summary reversals by the Roberts Court as “designed to enforce the Court’s supremacy over recalcitrant lower courts,” while noting that others were “lightning bolts,” which he described as “ad hoc exercises of prerogative.”

The Supreme Court has had a shadow docket throughout history, but until recently it was rarely used to issue high-profile, often controversial decisions, even when time was of the essence. This changed when the last administration filed an unprecedented number of requests for emergency relief with the Court. In its four years in office, the Trump administration filed 41 emergency applications with the Court, compared with only eight that had been filed in the 16 previous years of the George W. Bush and Barack Obama presidencies. Thus, instead of one government request every two years for the Court to issue emergency relief, the Trump administration made such requests almost monthly ­— and the Court’s conservative majority usually granted them. Professor Steven Vladeck reports: “Not counting one application that was held in abeyance and four that were withdrawn, the justices granted 24 of the 36 applications in full and four in part.” While only one of the eight applications for emergency relief filed by the Bush and Obama administrations generated any public dissent by a justice, 27 of the applications from the Trump administration did.

The pattern of conservative justices using the shadow docket to speed the implementation of controversial Trump administration policies was decried by Justice Sotomayor in a 2020 dissent from a 5-4 order. “Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists — even though review in a court of appeals is imminent — that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.” Sotomayor argued that while stay relief is supposed to be reserved for “truly exceptional cases” when it is “absolutely clear” that a lower court erred, the government now views emergency relief as “the new normal.” But even more troubling to Sotomayor was that “the Court’s recent behavior on stay applications has benefited one litigant over all others” — the Trump administration. She argued that “this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.”

As Sotomayor has written, stay decisions “force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay.” This is well illustrated by the “lightning bolt” (to use Professor Baude’s term) the Court issued when it stayed the Clean Power Plan in February 2016.

The CPP, affecting the utility sector, had been the centerpiece of U.S. efforts to persuade the nations of the world to adopt the Paris Agreement in December 2015. It was the culmination of EPA’s response to the Court’s landmark Massachusetts v. EPA decision in 2007, where the Court held that greenhouse gases are “air pollutants” that may be regulated under the Clean Air Act if the agency finds that they endanger public health or welfare. In 2009 EPA made such an endangerment finding. In 2014, the agency proposed regulations to limit GHG emissions from existing power plants. After successfully fending off a premature industry lawsuit seeking judicial intervention to block EPA from even issuing regulations, the agency published them in final form in October 2015. EPA adopted the CPP only after considering 4.3 million public comments, the most the agency had ever received in any rulemaking action during its then 45-year history.

On the very day the final regulations appeared in the Federal Register, coal companies, utilities with coal-fired power plants, and attorneys general from more than two dozen states filed petitions for judicial review in the U.S. Court of Appeals for the D.C. Circuit, the exclusive venue under the Clean Air Act for legal challenges to nationally applicable regulations. They also moved immediately for a stay of EPA’s final rule. After two months of briefing and more than 2,500 pages of evidentiary submissions, the D.C. Circuit panel unanimously denied a stay on January 21, 2016. The panel explained that “petitioners have not satisfied the stringent requirements for a stay pending court review.” The panel cited Winter v. Natural Resources Defense Council, which required a petitioner to “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

Opponents of the CPP then took the unprecedented step of filing a stay request with the Supreme Court. No legal observer expected the Court to intervene, because there was no precedent for doing so. The case did not meet any of the normal criteria for Supreme Court review. There was no conflict in rulings by other courts — indeed there could not be, because the Clean Air Act gives the D.C. Circuit exclusive venue. Yet the Supreme Court on February 9, 2016, granted the stay request without offering any explanation. Because justices Ginsburg, Breyer, Sotomayor, and Kagan noted their dissents, all that was known was that the order had been issued by a 5-4 vote.

Although the order was not a judgment on the merits, many interpreted it as a signal that the Court would strike down the CPP regardless of how the D.C. Circuit ruled. “President Obama’s Clean Power Plan is dead and will not be resurrected,” exulted lawyers for the state of Oklahoma in a Wall Street Journal op-ed the following day. Three days later it was Justice Scalia who was dead of a heart attack at the age of 79, making the stay order the last vote he ever cast. It was certainly one of his most consequential acts.

The Court’s order not only offered no legal justification for staying the CPP, it also did not explain how the Court even had jurisdiction to issue it. Rule 11 of the Supreme Court’s rules of procedure authorizes review of a case pending in a U.S. Court of Appeals before judgment if “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination.” But the Court’s order left the case to be decided by the lower court without explaining the reasons for the stay. The Court apparently accepted the thinnest of assertions that power companies would be harmed by a rule that did not impose any immediate legal obligations on them. The CPP allowed states 30 months before submitting compliance plans or they could opt out entirely and leave the planning to EPA. Oklahoma had a hard time claiming irreparable harm because its governor already had issued an executive order banning any state cooperation with EPA. Initial deadlines for power plants to comply did not kick in until 2022 and full compliance was not required until 2030. On its own motion, the D.C. Circuit expedited the case and heard it en banc on September 27, 2016.

A primary criticism of the recent use of shadow-docket orders has been that they do not give the Court sufficient time to reach considered decisions. Throughout history, even when time was of the essence, the Court has been able to hold oral arguments and decide cases in an expedited fashion. In 1952 the Court expedited briefing and oral argument in the Steel Seizure case, granting review within weeks of President Truman’s seizure order and deciding the case just a month later. Twelve days after the New York Times received a restraining order to cease publication of the Pentagon Papers, the Court heard two days of oral argument and decided the case five days later. In the Nixon tapes case the Court granted review less than a month after a district judge ordered the president to turn over his tape recordings. Delaying its summer recess, the Court held oral argument 13 days later and issued its decision just 16 days after that. Each of those cases produced landmark decisions that have withstood the test of time.

The history of environmental law in the Supreme Court demonstrates the importance of granting plenary review. The papers of Justice Thurgood Marshall revealed that the landmark “snail darter” case of TVA v. Hill almost came out the other way in a summary order. The Sixth Circuit had blocked completion of the Tellico dam to save an endangered species of fish. But when the case initially was considered at conference, five justices voted to reverse the injunction summarily. Justice Rehnquist quickly circulated a six-page draft per curiam opinion allowing the dam to be completed. But after Justice Stevens circulated a three-paragraph dissent blasting the Court majority for “unprecedented” and “lawless” action, the five-justice majority found that it could not agree on a rationale for reversal. Only then did the Court agree to hear oral argument. The argument was a true classic, pitting Attorney General Griffin Bell against University of Tennessee law professor Zyg Plater, arguing his first case ever. Plater clearly got the best of the argument, particularly when parrying questions from Chief Justice Burger about equitable discretion in the issuance of injunctions. Ultimately both Burger and Justice White changed their initial votes, producing a resounding, 6-3 victory for the snail darter and the Endangered Species Act.

The Court’s unprecedented stay of the Clean Power Plan represents its most egregious issuance of a “lightning bolt” in an environmental case, but it is not the Court’s only important environmental intervention. Four years ago, the Court issued a shadow-docket order to block a federal district court from holding a trial in the Juliana climate litigation against the federal government. Plaintiffs, who included 21 children between the ages of eight and nineteen, alleged that the federal government violated their substantive due process rights and its public trust obligations by knowing about the dangers of climate change for more than 50 years, but failing to protect them against it.

Federal district judge Anne Aiken rejected the government’s motion to dismiss and scheduled a trial to commence in October 2018. After the Ninth Circuit denied the federal government’s motion for a writ of mandamus to halt discovery and any trial, the federal government then turned to the Supreme Court. On July 30, 2018, the last day before Justice Kennedy’s retirement, the Court denied the government’s request as “premature.” But it did so without prejudice, noting: “The breadth of respondents’ claims is striking, however, and the justiciability of those claims presents substantial grounds for difference of opinion.” The court sent a message to Judge Aiken that she “should take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the government’s pending dispositive motions.”

On October 19, 2018, days before the trial was scheduled to commence, Chief Justice Roberts, in a one-sentence order, issued before even receiving a response from the plaintiffs, indefinitely stayed discovery and trial in the case. He did so in response to an application from the United States asking for a writ of mandamus dismissing the Juliana petition. Although the Court later vacated its stay, over dissents from justices Thomas and Gorsuch, who would have mandated dismissal of the litigation, it did so on the grounds that the Ninth Circuit could provide adequate relief by persuading Aiken to certify an interlocutory appeal to it. After she did so, in January 2020 a divided panel of the Ninth Circuit dismissed the case for failure to meet the redressability prong of standing doctrine. The two judges in the majority believed that an Article III court did not have the power to remediate the climate change problem.

At a time of great public concern for the environment nearly a half century ago, the Court used a shadow-docket order to pressure another U.S. circuit court to act. In 1974, after the Eighth Circuit stayed a district court’s order requiring the Reserve Mining Company immediately to cease discharging taconite tailings into Lake Superior, the state of Minnesota asked the Supreme Court to vacate the stay. On July 9, 1974, the Court denied the motion over Justice William O. Douglas’s dissent. Concerned that the stay was allowing deadly pollutant discharges to continue, Michigan, Wisconsin, and environmental groups joined Minnesota in October 1974 in again asking the Supreme Court to vacate the stay. To pressure the Eighth Circuit into reaching a decision expeditiously, the Court invited the applicants to renew their request “if the litigation has not been finally decided by the court of appeals” within 16 weeks. The Court’s order helped convince the Eighth Circuit to expedite consideration of the case, which it heard en banc and decided shortly after the Court’s implicit deadline.

Some have suggested that the Court has relaxed the requirement for showing irreparable harm by presuming such harm whenever a district court issues an injunction against the federal government. But because shadow-docket orders typically are issued with little explanation, one cannot be sure. In July 2019, a sharply split Supreme Court stayed an injunction the Sierra Club had obtained to block expenditures of funds to construct President Trump’s border wall. In that case the Court majority explained that “the government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review” of compliance with appropriations restrictions. Writing in partial dissent, Justice Breyer argued that irreparable harm to both sides could be avoided if the government were allowed to enter into contracts to build the wall, without starting the construction that the Sierra Club claimed, and the district court agreed, would be the source of irreparable harm. The Supreme Court’s order allowed the Trump administration to continue building the border wall, even though the funding whose legality was questioned likely would be exhausted before the Court ruled on the merits. In addition to Justice Breyer, three other justices dissented from the stay.

In litigation challenging construction of the Keystone XL pipeline, the Court in July 2020 stayed a district court’s nationwide injunction blocking construction of pipelines crossing federal waters. The district court had vacated the Nationwide Permit authorizing such crossings because it found that the Army Corps of Engineers had failed to adequately consider effects on endangered species when the permit was renewed. However, perhaps because the Court decided not to stay the injunction as it applied to the Keystone XL pipeline that precipitated the litigation, this decision did not spawn any dissent.

There is nothing illegitimate about the Court having a shadow docket, and the term was not coined to place the Court in a bad light. But the Court’s recent use of emergency orders to aggressively promote exclusively conservative ends has cast doubt on its impartiality, undermining its legitimacy. In the year that Justice Barrett has been on the Court, creating a conservative super-majority, the Court has issued seven emergency orders blocking state Covid restrictions. That is nearly twice as many as the four times combined the Court directly blocked state laws during the first 15 years of Chief Justice Roberts’s tenure. Thus it is not surprising that justices Thomas and Barrett have found it necessary to give speeches insisting that the Court is not political, and Justice Alito has responded harshly to critics of the Court’s recent shadow-docket practices. By issuing summary rulings that effectively decide major matters of law and policy with scant briefing and no argument — and by issuing them exclusively to promote conservative causes — the Court may be seriously undermining its credibility.

On October 29, 2021, two conservative justices questioned use of the shadow docket. Voting not to block Maine’s vaccine mandate for infringing on religious freedom, Justice Barrett, joined by Justice Kavanaugh, wrote that the “emergency docket” should not be used “to force the Court to give a merits preview in cases that it would be unlikely to take — and to do so on a short fuse without benefit of full briefing and oral argument.” But on the same day, the Court stunned observers by announcing it would review a decision that the Trump administration had illegally rescinded the Clean Power Plan even though the Biden administration has no plans to revive it. Conservative judicial activism reigns. TEF

LEAD FEATURE Orders issued without plenary review and oral argument used to be rare at the Supreme Court. That changed under the Trump administration. The result was emergency stays issued on average every two months, almost exclusively favoring conservative policy outcomes.

FWS v. Sierra Club Suit Threatens Role of Interagency Consultations
Amanda Leiter - American University Washington College of Law
American University Washington College of Law
Current Issue
Amanda Leiter

Granted March 2, U.S. Fish and Wildlife Service v. Sierra Club is a Supreme Court sleeper case, though you would be forgiven for deeming it merely soporific. The question presented is unintelligible to anyone who does not file Freedom of Information Act requests in Endangered Species Act cases: “Whether Exemption 5 of [FOIA] . . . protects against compelled disclosure a federal agency’s draft documents that were prepared as part of a formal interagency consultation process under [ESA Section 7] and that concerned a proposed agency action that was later modified in the consultation process.” That dry language may explain why the docket is so spare — a few applications to extend deadlines; a cert petition, brief in opposition, and reply; no amicus briefs.

Hiding in the case, though, is a fundamental question about interagency consultations. These conversations between federal agencies enable a licensing or regulatory agency (the “acting agency”) to benefit from the expertise of one or more consulting agencies. Interagency consultations play an important role in various environmental contexts, including development of environmental impact statements under the National Environmental Policy Act and licensing of hydropower facilities under the Federal Power Act.

FWS v. Sierra Club concerns ESA consultations between the EPA and the expert wildlife services, the FWS and the National Marine Fisheries Service. The consultations related to EPA’s development of a rule regulating industrial cooling water intake structures. Because operation of these structures can harm endangered aquatic organisms, ESA Section 7 required EPA to consult with both services prior to issuing the rule. In fact, EPA went through two rounds of consultation, one in 2013 over a draft of the rule, and one in 2014 over a revised final version. The services expressed concern that the 2013 draft could jeopardize endangered species but subsequently signed off on the 2014 version.

The question in the case is whether the Sierra Club, in investigating the lawfulness of the final rule, may obtain the services’ documents from both rounds of consultation, or solely from the 2014 round. The services argue documents from the first round are predecisional (and hence privileged) because those documents concern an early and ultimately abandoned rule draft.

To make the issue less arcane, imagine that instead of EPA consultations with the services over a rule, we were talking about a child’s consultations with a babysitter over bedtime. Child proposes a late bedtime; Babysitter refuses, knowing that this would make Child cranky the next day (Round One); Child suggests an earlier bedtime in return for ice cream; and Babysitter signs off (Round Two). Now imagine Parent coming home and noticing the empty ice cream container. To evaluate whether Child deserved the ice cream, does Parent need to know what happened in both rounds of consultation?

The short answer is yes. In both real and imagined scenarios, the outside evaluator needs to know about both consultations, to ensure the services (Babysitter) maintained appropriate independence throughout the rule development (evening) and rendered a considered opinion in each round. Problematic capitulation is easiest to imagine in the Babysitter example. Parent wants to know whether Child behaved. To figure that out, Parent needs to ask whether Babysitter considered the ice cream a reasonable price for an early bedtime, or instead agreed to the treat because Child threw a tantrum. Likewise, the Sierra Club wants to know whether EPA properly modified its rule. To figure that out, the club needs to ask the services whether they believed the final rule adequately mitigated the species impacts of the 2013 draft, or instead signed off on the 2014 version because EPA or the White House threw its political weight around.

The public can’t police the integrity of the consultation process without viewing all rounds of consultation. The point of consultation is to ensure that an acting agency does not move forward without considering the independent view of the consulting agency. To evaluate whether specific consultations served that purpose, an independent evaluator must be able to review the entire path by which the consulting agency arrived at its final position.

Moreover, neither round of consultation is truly predecisional. Labeling the first round predecisional merely because EPA hasn’t finalized its rule conflates the work of the acting and consulting agencies. The acting agency’s first proposal is predecisional, but if the consulting agency maintains proper independence, its assessment of the first proposal should be final — that is, the assessment shouldn’t change unless the proposal changes, an event the consulting agency can’t control.

So stay tuned to see whether the Supreme Court agrees that we need to know where the ice cream went and who had a temper tantrum.

FWS v. Sierra Club Suit Threatens Role of Interagency Consultations.

Seventy-Four Inches
Richard J. Lazarus - Harvard Law School
Harvard Law School
Current Issue
Seventy-Four Inches

On November 29, 2006, Jim Milkey and his opposing counsel, Deputy Solicitor General Gregory Garre, woke early.

Milkey was staying at a Holiday Inn less than two blocks from a homeless shelter not too far from the Capitol — the Commonwealth of Massachusetts has a limited daily allowance for reimbursable travel expenses. Garre was at his home in northern Virginia, where he lived with his wife and daughter, who had celebrated her first birthday only a few weeks before. Both men followed the same time-tested ritual for “argument day.” They took especially long hot showers. And in the shower, each one practiced his oral argument out loud one last time.1

Moses Humes Jr., the assistant supervisor of the Marshal’s Aides, arrived at the Court well before either one of them. Humes had joined the Marshal’s Office in 1999, after a long career in the military. He first visited the Court in 1993, when Justice Thurgood Marshall had been lying in repose in the Great Hall, never dreaming he would one day work there. But after several decades of service in the Air Force and Army — as an administrative assistant from 1956 to 1960 and then as a medical specialist from 1977 to 1999 — he had returned to the Court at sixty to report for his new line of duty.2

Humes was still military fit, and he lit up rooms with his brilliant smile and vibrant ring of white hair. He was beloved at the Court. On argument days, it was Humes’s job to ensure that the Supreme Court courtroom was ready by 10 a.m., when the arguments would begin.

Those employed at the Court take enormous pride in their jobs.3 The image the Court strives to portray to the outside world — that of an institution that must be scrupulously fair, careful, and highly professional — is an essential ingredient in the success of a legal institution that possesses authority only so long as the other two branches of government and the general public accept its judgment. With no formal power to enforce its rulings, the Court must cultivate power through its prestige.

The only chief justice to have served as president of the United States, William Howard Taft, understood this basic truth. That is why Chief Justice Taft insisted that the Court move out of the Capitol Building, where it had occupied space lent to it by the Senate (at one point the justices were relegated to the Senate chamber basement) and where the justices had sat since the early 19th century. How could a coequal branch of government be taken seriously if it was conducting its work in another branch’s building and if, when space got tight, the justices were literally under the feet of the members of that other branch? So, wielding the persuasive powers of a former president, Taft in 1929 (just before the Great Depression) secured the funding from Congress necessary to construct a truly magnificent building for the Supreme Court. Both its distinct location and its powerful design projected the authority of an independent judiciary. The contrast between the Court’s old quarters and its new home, completed in 1935, five years after Taft’s death in 1930,4 was so great that several justices initially balked at moving in. They said they would feel like “nine black beetles” moving into the ancient Egyptian Temple of Karnak and mockingly asked whether they would need to ride elephants to work every day. But there was a serious side to their jokes, because Taft’s makeover of the Court building, initially championed by the architect Cass Gilbert, was designed in part to make everyone, including the justices themselves, appreciate the importance of the Court’s work.5

By the morning of the Massachusetts v. EPA argument seventy years later, the justices had become accustomed to the grandeur of their quarters. They looked the part in their deliberately austere black robes, designed to underscore their objective neutrality. It is an image that, to their dismay, contrasts sharply with how members of the public have increasingly begun to perceive them based on their voting record in many of the Court’s highest-profile cases — as political partisans expressing the policy preferences of the president who nominated them. Ensuring that the Court presents itself to the public in a manner consistent with its self-image of rigorous neutrality was a responsibility that Humes and the Marshal’s Aides he supervised took seriously. Every detail has to underscore the rigor and exactitude of the Court’s work, its probity and lack of bias.

All nine black leather chairs — each with a justice’s name engraved on it — must be in their proper places behind the bench where the chief justice and the eight associate justices sit, positioned equidistant from each other and with the back of each chair set at the same angle and height. By each justice’s side is a green porcelain spittoon, which (happily) is no longer used for its original purpose and functions instead as a wastepaper basket.6

One by one, as he had long been accustomed to doing, Humes arranged all nine black chairs and green spittoons. Then, assisted by more junior Marshal’s Aides, Humes opened a small wooden dresser behind the bench, carefully removed a tray holding nine pewter mugs, and placed each mug at its proper location.7 The name of the justice is engraved on the mug followed by the name of the justice they replaced, going back in time, reminding each justice of his or her own distinct lineage. Because pewter is a soft metal, the older names can be hard to decipher, which discourages the mugs’ frequent washing. In their own simple way, the mugs remind the justices of the historic but ultimately temporary role they each serve as a member of the Court; their name will not be the last name on the mug, and it will disappear over time.

Finally, Humes turned his attention to the two tables where the advocates sit before they rise to the lectern and present their oral arguments. Pads of paper, water pitchers, and water glasses must be available and properly positioned on each table. Four handcrafted writing quills are also laid out, precisely positioned, and configured. A small piece of paper, no bigger than an index card, offers a seating chart, indicating where each justice, by name, sits on the bench.8

For the past seven years, Humes had repeated this ritual before every argument day — now about forty a year — as Marshal’s Aides had done for more than a century, since the appointment of the first marshal in 1867 charged with providing security for the building and the justices, safeguarding all Court property, and attending all of the Court sessions. When Jim Milkey and Greg Garre reached the courtroom several hours later, everything had been set out perfectly. Humes’s job was done.

“Make Me Look Like the Biggest Asshole in the World”

As Milkey passed by the Court’s famous façade and entered the Maryland Avenue side entrance, the day’s unseasonable warmth — temperatures would reach 62 degrees — seemed a good omen, a reminder, even if wholly unscientific, that global warming and climate change were real. Milkey made his way through the first set of security scanners by the entrance and idled for a bit next to a larger-than-life-size bronze statue of Chief Justice John Marshall, while waiting for a member of the Marshal’s Office to escort him upstairs. A self-described “cheapskate,” Milkey proudly wore a suit he had bought at Costco, which he also declared to be a “good luck charm.” For good measure, he had brought two further good luck charms — two stones, one black and the other pink — lodged in the suit’s pocket. The stones had been given to him by one of his co-counsel from the Massachusetts Attorney General’s Office; and although Milkey swore that he didn’t believe in that kind of thing, he thought, “Why not take a chance?”9

The Sierra Club’s David Bookbinder, champion of a failed effort to block Milkey from arguing the case that morning, approached him by the Marshall statue. No doubt seeking to inspire, Bookbinder came up with a curiously backhanded compliment. “Jim,” he said, “your job today is to make me look like the biggest asshole in the world.”10 Milkey did not respond. He didn’t even blink. He was as motionless and dispassionate as the statue he stood next to. He was, he later said, completely “in the zone.”11

Nor did he react to or even later recall the woman in her early fifties, in a dark suit, who quietly approached him, shook his hand, and stated simply, “May the best arguments win.” Unbeknownst to Milkey, she was one of the many career attorneys who had worked on the EPA opinion denying Mendelson’s petition several years before. And like many EPA career attorneys, she was privately rooting for Massachusetts to win on the question of whether greenhouse gases were air pollutants.12

Her hopes might have dimmed on close appraisal of Milkey. He had slept so little in the two weeks before that his wife, Cathie, told him he “looked gray.” She was referring to the pallor of his skin, not the color of his hair. Neither Cathie nor their two young teenage sons felt like they had seen him for weeks, if not months, even when he was nominally at home. The case had consumed all of his time and energy, leaving no room for anything else.13

A few minutes later, escorted by the deputy clerk of the Court, Milkey entered the courtroom after first briefly meeting with William Suter, the clerk of the Court, to go over morning logistics. Milkey had been in the courtroom before but never to deliver an oral argument. The room itself is massive: 83 by 91 feet with 44-foot-tall ceilings, its perimeter marked by twenty-four columns of Siena marble. The walls are of ivory vein marble from Spain, and the floor borders are Italian and African marble. The courtroom had been built at the heart of the Great Depression, but ironically that had been a boon for the Court because Congress had authorized $9,740,000 for the new building’s construction just before the 1929 stock market crash, which had significantly lowered the actual construction cost. As a result, there was ample money available to construct a building of exceptional beauty — and, when completed, the Court was still under budget and returned money to the U.S. Treasury.14

High above the bench where the Justices sit, a newcomer could spot a series of four 40-foot-long Spanish marble friezes — reportedly from a quarry near Monovar in the Province of Alicante15 — each one underscoring the sanctity of the rule of law. Directly above the bench on the east wall are two glowering bare-chested figures in Roman togas representing the “Majesty of Law” and the “Power of Government.” They sit side by side, separated by a tablet with Roman numerals I through X, representing the Constitution’s Bill of Rights. To their left and right are figures representing “The Defense of Human Rights and the Protection of Innocence,” and the “Safeguard of the Liberties and Rights of the People in their Pursuit of Happiness.” On the frieze immediately behind them, an American bald eagle defiantly spreads its wings.16

For lawyers, a Supreme Court argument is an advocate’s grandest stage — an opportunity to join the historic ranks of Daniel Webster, Henry Clay, and Thurgood Marshall who once stood, like them, at the lectern before the Court.17 But any lawyer about to present oral argument before the justices who mistakes himself for the equivalent of the Olympic athlete before a contest quickly discovers that the more apt analogy is that of an untrained bestari fighting wild animals in the Colosseum in Rome.

The justices’ barrage of demanding, wide-ranging, and penetrating questions is a clear reflection of their high expectations of the counsel who appear before them. For anyone unprepared or unable to answer the justices’ questions, there is no place to hide. Any weaknesses in their arguments will quickly be exposed and their proffered reasoning shredded. The unrelenting intensity of questioning has caused some advocates to lose their breath or even faint dead away. In trying to defend President Franklin Delano Roosevelt’s New Deal legislation, U.S. Solicitor General Stanley Reed passed out under a torrent of questions unleashed by the justices, led by Felix Frankfurter. An attorney once fainted in the exact same spot where his father had fainted decades earlier.18

When Milkey was ushered in, the courtroom was quickly filling up to capacity. Everyone knew that Massachusetts was a big case, by some accounts the most significant environmental case ever heard by the Supreme Court. Members of the public and of interest groups on all sides of the climate issue — even attorneys who had worked on the case — had camped out overnight on the sidewalk in front of the Court to secure one of the 250 coveted seats. Anyone who made the mistake of arriving after 6 a.m. was far too late. At best they would be relegated to the “three-minute line” at the very back of the courtroom, where a dozen or so people were allowed to watch the proceedings for approximately three minutes before being escorted out and replaced by the next group.

Also quickly filling up to capacity were the eighty seats for members of the Supreme Court Bar, at the front of the courtroom immediately behind the counsel’s table, separated from the public section by a bronze railing. Some of the industry lawyers who had come that morning could bill $500 or more per hour for the time they spent in line (beginning at 6 a.m.) to attend the argument. Anyone showing up at the Bar line after 7 a.m. was too late for a courtroom seat, and would be shunted off to a room reserved exclusively for members of the Bar where they could listen to a live audio feed.

To the far left of the bench is the area reserved for the national news media, and it, too, was filled to capacity — seventy people can just about squeeze in, though anyone in the back will have an obstructed view. The seats are assigned by seniority, so veteran Supreme Court reporters like Linda Greenhouse of the New York Times, Robert Barnes of the Washington Post, and Nina Totenberg of National Public Radio had their seats of honor up front. They surveyed the scene, scanning the crowd for anyone who might be worth following up with later.

By 9:59 a.m., only nine seats remained empty. Unbeknownst to those nervously awaiting their appearance, the nine justices were already in the courtroom, hidden from view by 26-foot-tall, dark red, heavy velvet curtains trimmed in gold immediately behind the bench. Several likely joked quietly about the unseasonably warm weather outside. Then, each justice, in a long-standing tradition established in the late nineteenth century by Chief Justice Melville Fuller, shook the hand of the other eight. Fuller became chief in 1888 at a time when the Court was reportedly populated by justices who were highly individualistic and prideful, and the handshake was one of several ways that Fuller was credited with avoiding acrimony and rifts within the Court.19

At precisely 10 a.m. — marked by a final click of the minute hand on a large bronze clock designed, like the building itself, by Cass Gilbert and located directly above the bench — a small chime sounded in the already hushed courtroom. Marshal Pamela Talkin banged her gavel, and all nine justices emerged simultaneously from three spots behind the curtains. Everyone in the courtroom rose to show their respect.

Harkening back to the Anglo-Norman word “to hear,” the marshal announced: “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting.”

The Court was now in session.

The Nine

Now in his second year on the job, Chief Justice John G. Roberts Jr. took his seat in the middle of the bench. Only the 17th person to serve as chief justice of the United States, Roberts was a youthful 50 years old at the time of his appointment, the youngest chief justice since John Adams appointed 45-year-old John Marshall to the Court in 1801. Roberts had a four-year-old son and a five-year-old daughter — the youngest children of a chief justice since Oliver Ellsworth’s appointment in 1796 — prompting the chief’s security detail to purchase two car seats at a local warehouse toy store for the large black SUV they used to transport him from his home in suburban Maryland — a perk Chief Justice Ellsworth had not enjoyed.

Roberts had originally been nominated by President George W. Bush in July 2005 to take Justice Sandra Day O’Connor’s seat on the bench after she announced her retirement earlier that month. But three days before Roberts’s scheduled Senate confirmation hearing, Chief Justice William Rehnquist died — and President Bush nominated Roberts to the chief justice slot instead. Roberts had served as a judge on the D.C. Circuit only a couple of years at the time of his nomination, but he had impeccable professional and political credentials and seemed to be on his way to easy confirmation for O’Connor’s slot when Bush made the switch because Roberts had so impressed Bush with his leadership potential.

Roberts had graduated at the top of his class at both Harvard College and Harvard Law School, had served as clerk on the U.S. Supreme Court, and had been widely considered to be one of the nation’s most highly gifted Supreme Court advocates. He had been a political appointee in the White House and Justice Department during the administrations of Presidents Ronald Reagan and George H. W. Bush, but he did not have a reputation as being highly ideological or politically partisan. His strong performance during his confirmation hearings, in which he impressed the nation with his intelligence, charm, and wit, led to easy confirmation by a lopsided Senate majority in otherwise sharply divided political times. During those hearings, he promised the nation that as chief justice he would set a tone of judicial modesty, encouraging unanimity and less divisiveness in voting and more narrowly drawn rulings. At the time of Massachusetts, the chief was sufficiently new on the bench that his promise had not yet been tested.

Seating is determined strictly by seniority. To the chief justice’s immediate right that morning was Associate Justice John Paul Stevens, who had served on the Court for 31 years. To Roberts’s immediate left sat Antonin Scalia, who had served on the Court for 20 years. Both had been nominated by Republican presidents — Stevens by President Gerald Ford and Scalia by President Reagan — and both had been confirmed by the Senate by identical votes of 98–0. But once on the bench, the two justices voted very differently in the most high-profile cases, with Justice Stevens increasingly voting in ways characterized as liberal and Justice Scalia as a stalwart conservative. Their personalities on the bench could also hardly have been more different. While each was capable of unraveling an advocate’s arguments, the midwesterner Stevens was invariably polite and succinct in his questions, routinely asking the advocate for permission to interrupt. Hailing from Queens, Scalia, by contrast, captivated the courtroom with his loud and demanding voice and seemingly relished the opportunity to engage in verbal battle with those arguing before him.

The remaining six justices sat alternating to the Chief’s right and left in decreasing order of seniority: Justices Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Samuel Alito, who sat to the Chief’s far left. Justices Kennedy, Thomas, Souter, and Alito had each been nominated by Republican presidents — Reagan, George H. W. Bush, and George W. Bush. Of the four, only Justices Thomas and Alito had proven to be as conservative on the bench as their billing when nominated. Thomas enraged liberals because he had replaced Thurgood Marshall and consistently voted in ways wholly antithetical to Marshall, who was a liberal icon. Alito was still fairly new on the Court, having joined the Court only a few months after Roberts, and his principal qualification was that his sixteen years of rulings on the federal appellate court in Philadelphia left no doubt that he would be a reliable, conservative vote. Thomas’s only surprise on the bench had been his policy of almost never asking questions during oral argument, even though his opinion writing made it clear he was fully engaged in the cases and had strongly held views. As the most junior justice, Alito was asking relatively few questions, but what was striking was the sometimes almost grouchy way he posed them. Unlike someone like Scalia, Alito rarely seemed to enjoy the arguments, and he lacked Stevens’s politeness and polish.

Kennedy and Souter were the reason Alito’s apparent reliability as a conservative vote had been so important to Republicans. When he was nominated by President George H. W. Bush in 1990, Souter was a complete unknown nationally, having served on the federal appeals court in Boston for less than five months after seven years on the New Hampshire Supreme Court. His lack of a paper trail had been considered an asset to secure Senate confirmation, as the Democrats were in the majority — the president’s chief of staff reportedly privately advised worried Republicans that Souter would be a “home run” for placing a conservative on the bench. But once on the Court, Souter tended to vote so frequently like Justice William Brennan, the liberal justice he had replaced, that “No More Souters” became a battle cry for Republicans.20

Although not as liberal as Souter, Kennedy also had disappointed conservatives. He had generally voted in ways favored by conservatives, but he also harbored grandiose views of the role of the Su-preme Court in advancing justice, which prompted him occasionally to vote for positions they deplored. Siding with Souter and the most liberal justices on the Court, Kennedy had voted against over-ruling the Court’s abortion decision in Roe v. Wade,21 in favor of striking down as unconstitutional a Texas law outlawing homosexual activity,22 and against imposing the death penalty on offenders who were juveniles or had intellectual disabilities.23

Both Kennedy and Souter could be active questioners at oral argument in cases that interested them, but they had very different styles. Sounding very much like the constitutional law professor he had once been, Kennedy was more likely to pontificate about his own views than to pose a series of questions designed to make a point. Souter was the opposite. He would ask a series of a questions with a threshold politeness that could be misleading. If he concluded that the attorney’s answers were evasive, Souter could quickly become tenacious and demanding.

President Bill Clinton had nominated Ginsburg and Breyer to the Court during his first two years in office. Both were easily confirmed, by votes of 96–3 and 89–6, because they were largely considered to be judicial moderates despite their obvious liberal leanings. Ginsburg, of course, had been a pathbreaking champion of women’s rights as a legal advocate, including successfully arguing six cases before the Supreme Court. But while a judge on the D.C. Circuit, she enjoyed a reputation as a fair-minded stickler for legal rules who did not have an ideological or political agenda. She received strong support from the business community. The same was true for Breyer. Formerly a professor at Harvard Law School, he had previously worked for the Senate Judiciary Committee, where he had impressed Democratic and Republican leaders with his evenhandedness and dislike for excessive federal regulation. While a judge on the U.S. Court of Appeals for the First Circuit, Breyer similarly had a moderate judicial track record. But once on the Court, Ginsburg and Breyer both had increasingly become champions, by their votes and in their written opinions, of outcomes favored by liberals, especially Ginsburg on matters touching on gender equality.

They could both be active on the bench in cases that interested them. Breyer was infamous for his long-winded questions and Ginsburg for both her quiet voice and her extraordinary command of legal procedure. But everyone also knew her voice remained quiet only in terms of its decibel level.

“Draw Near”

Before the argument, Milkey had of course studied all the backgrounds and predilections of the justices, and what immediately struck him as they entered the courtroom was how physically close they were to where the lawyers sat and stood to argue. Closer than in any courtroom he had ever been in. It was surprising, given the room’s grandeur and solemnity.

Seventy-four inches is all that would separate the lectern behind which Milkey would stand and the mahogany bench behind which Chief Justice Roberts sat, flanked by four justices on either side.24 As “admonished” by the marshal in her opening declaration, lawyers who are about to present oral argument before the Supreme Court do in fact “draw near.”

The surprisingly intimate setting — the justices and counsel are almost close enough to reach out and touch hands — might seem to invite an informal conversation. But Milkey was not about to forget the formality of the setting, or the enormousness of the stakes. The bench’s apparent friendly embrace could quickly become suffocating.

The advocate’s proximity to the bench presents an unexpected challenge. The justices are so close to the lectern that the advocate cannot see all nine of them at the same time. Arguing counsel must turn from side to side to see the entire bench. But because of the acoustics of the room, the lawyer hears the questions being posed by the justices only from speakers high above the bench. As a result, the counsel cannot identify the speaker by relying on the kinds of visual or auditory cues that one subconsciously assumes will be available when talking to another person at such close proximity. First-time advocates, unprepared for this acoustical trick, can quickly become confused during argument as they hear a question but cannot immediately identify which justice has asked it. Sometimes the justice asking the question will wave a hand to signal to the lawyer or even say out loud: “I’m over here.” But sometimes they don’t.

Seasoned advocates, aware of the problem, prepare by memorizing the voices of the justices ahead of time, training themselves to listen for Souter’s aristocratic Yankee dialect with its muted “r’s”; Ginsburg’s quiet, classic Brooklyn accent; Scalia’s unmistakable booming voice from Queens; or the chief justice’s flat vowels, suggestive of his Indiana roots. More-experienced advocates also know to scan the bench for the subtle physical sign that a justice is about to ask a question: each one must lean forward ever so slightly to push the button on the microphone in front of them.

As Milkey surveyed the bench in those few seconds between the time the justices entered and the moment the argument would begin, Justice William J. Brennan Jr.’s famous “Rule of Five” hung in the air. Brennan had served on the Court from 1956 to 1990, and according to the lore of his chambers he would gather his new law clerks in his office soon after their arrival and quiz them by asking, “What is the most important rule of constitutional law?” Determined to impress their new boss, the young clerks would compete over the relative importance of such fundamental constitutional guarantees as due process, equal protection, free speech, the right to vote, the privilege against self-incrimination, or the prohibition on cruel and unusual punishment.

Justice Brennan would wait for each one to express a view before calling them all up short and declaring it was the rule of five. Brennan would then explain to his inevitably perplexed young charges that the most important rule of constitutional law, at least for their purposes over the course of the year in his chambers, was that it took five votes to secure the majority needed for an opinion of the Court.25 Milkey knew that he needed five justices to win his case — and he did not expect that securing that razor-thin majority would come easy. At least four justices the previous June had voted to grant review, but justices who vote in favor of granting review are saying by their vote only that the legal issues presented in the case are sufficiently important to warrant the Court’s attention, nothing more. Moreover, because the identities of the justices that vote to grant review are not publicly disclosed, Milkey could not safely assume that the justices who had voted in favor of review in Massachusetts had done so because they thought his legal arguments had merit. The four could have included justices who saw the case as an opportunity to rule against environmental petitioners’ standing to bring this kind of lawsuit.

Milkey had to put those dark thoughts aside and focus on the task at hand: framing his argument and answering the questions as best he could to win the case. Justice Kennedy, seated to the immediate left of the chief justice, would likely cast the key vote. And getting Kennedy’s vote, Milkey had concluded, would turn on issues utterly unrelated to greenhouse gases. His argument that carbon dioxide emissions were air pollutants, Milkey thought, might well have traction with a large number of justices, but first he would have to overcome the jurisdictional hurdle of persuading a majority of the justices that Massachusetts and the other petitioners possessed standing to bring the lawsuit forward in the first place. On that issue, Kennedy was clearly the wild card of the nine.

Notwithstanding the Court’s effort to promote the image of nine neutral judges, Milkey knew, based on each Justice’s track record of voting, that all nine votes were not equally in play. The competing legal arguments made by the opposing counsel were likely to be received differently by the more conservative justices than they would be by the more liberal justices. Those factors are relevant in far fewer cases before the Court than members of the public assume, but Massachusetts was a case where the conservative/liberal divide was more relevant than in most.

Chief Justice Roberts and Justices Scalia, Thomas, and Alito were almost certainly opposed to the petitioners’ argument that they had the standing to bring their lawsuit against EPA, and Milkey had reason to hope that Justices Stevens, Souter, Ginsburg, and Breyer would be more favorably inclined. The contrasting positions of those eight justices were fairly predictable, based on both their past votes and the tendency of conservative justices to apply standing requirements more strictly than liberal justices. Kennedy was the ball-game — or, perhaps more accurately, Kennedy would determine whether Massachusetts was eligible to play the game at all.

In this respect, Massachusetts was similar to all other environmental cases that had been decided since Kennedy had joined the Court two decades earlier. In all but one of those cases, Justice Kennedy had sided with the majority. And in many of those instances, he had been the deciding fifth vote. At least in environmental law, but not only then, the way Kennedy went was the way of the Court. That is why some jokingly referred to the Supreme Court as the “Kennedy Court” rather than, as is traditionally done, by the name of the chief justice.

But much as he might like to, Milkey knew he could not focus all of his attention on Kennedy. He had to answer every question he was asked, however challenging or unfair its premise. A lawyer arguing a Supreme Court case does not have the luxury of ignoring a particular justice whose vote he knows is a lost cause. If Milkey had the option, he would gleefully agree to give up Justice Scalia’s vote in exchange for his silence during the oral argument. But to persuade Justice Kennedy, he would have to answer successfully the combative questions of the justice he anticipated would be the most hostile: Justice Scalia.

Yet what Milkey couldn’t do with his words, he could accomplish to a certain extent with his eyes. An outstanding oral advocate does not communicate by words alone. Counsel is also simultaneously sending messages to the justices through eye contact, or the lack thereof.

It’s a trick every new teacher quickly learns in the classroom. As soon as the students anticipate that the teacher is about to ask a question, what happens? Everyone in the room immediately looks down at their desks, suddenly discovering something totally fascinating to examine on the desk. Why? Because it’s a lot harder to call on someone who is not looking at you.

That same dynamic is at play in Supreme Court advocacy, and the best advocates exploit it to their full advantage. An advocate must answer any question any justice asks, no matter how hostile or potentially disruptive. But in addition to spending more or less time answering any given question, a lawyer may look more or less directly at certain justices. After responding to a question from Justice Scalia, Milkey had been instructed to pivot immediately to a less hostile corner of the bench. By shifting his gaze, Milkey was in effect inviting a new intervention, making it a tad harder for Scalia to ask a follow-up question and a tad easier for a friendlier justice to jump in, or at least one, like Kennedy, whose vote was more likely in play.

At 10:02 the chief justice announced that the Court would “hear argument first today in 05-1120, Massachusetts versus Environmental Protection Agency.” That was Milkey’s cue. He rose from his seat and moved to the lectern less than one foot to his right, and said, as so many had before him, “Mr. Chief Justice, and may it please the Court.” TEF



1. Jim Milkey, email message to author, March 8, 2018; Gregory Garre, email message to author, March 9, 2018; Confirmation Hearings on Federal Appointments before the S. Comm. on the Judiciary, 110th Cong. 623 (2008) (statement of Gregory G. Garre, Nominee to be Solicitor General of the United States).

2. Supreme Court Marshal’s Office, email message to author, April 12, 2018.

3. Ibid.

4. Fred J. Maroon and Suzy Maroon, The Supreme Court of the United States (New York: Thomasson-Grant and Lickle, 1996), 17–33; Supreme Court Historical Society, “Homes of the Court,”

5. Maroon and Maroon, The Supreme Court of the United States, 39; Supreme Court Historical Society, “Homes of the Court.”

6. Supreme Court Marshal’s Office, interview by author and tour of Supreme Court courtroom, April 9, 2018.

7. Ibid.

8. Ibid.

9. Jim Milkey, interview by author, July 6, 2018.

10. Jim Milkey, interview by author, February 18, 2015; author, personal recollections from argument morning at the Supreme Court, November 29, 2006.

11. Milkey, interview, July 6, 2018.

12. Former EPA employee, email message to author, June 14, 2018.

13. Milkey, email, March 8, 2018.

14. Supreme Court employee, email message to author, May 4, 2015; Maroon and Maroon, The Supreme Court of the United States, 134; Supreme Court Historical Society, “Homes of the Court”; Supreme Court of the United States, “Supreme Court Building— Building History,”

15. Supreme Court employee, email message to author, March 29, 2019.

16. Maroon and Maroon, The Supreme Court of the United States, 134–152; Office of the Curator of the Supreme Court of the United States, “Courtroom Friezes: South and North Walls, Information Sheet,” May 8, 2003,; Office of the Curator of the Supreme Court of the United States, “Courtroom Friezes: East and West Walls, Information Sheet,” October 1, 2010,

17. David C. Frederick, “Supreme Court Advocacy in the Early Nineteenth Century,” Journal of Supreme Court History 30, no. 1 (March 2005): 1.

18. “Reed in Collapse; AAA Cases Halted,” New York Times, December 11, 1935, 1, 9; John G. Roberts Jr., “Oral Advocacy and the Re-Emergence of a Supreme Court Bar,” Journal of Supreme Court History 30, no. 1 (March 2005): 72–73.

19. Supreme Court of the United States, “The Court and Its Traditions,”; Willard L. King, “Melville Weston Fuller: ‘The Chief’ and the Giants on the Court,” American Bar Association Journal 36, no. 4 (April 1950): 349.

20. Linda Greenhouse, “David H. Souter: Justice Unbound,” New York Times, May 2, 2009.

21. Planned Parenthood v. Casey, 505 U.S. 883 (1992).

22. Lawrence v. Texas, 539 U.S. 558 (2003).

23. Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543 U.S. 551 (2005).

24. Supreme Court employee, email, May 4, 2015.

25. Mark Tushnet, “Themes in Warren Court Biographies,” New York University Law Review 70, no. 3 (June 1995): 763.

BOOK EXCERPT ❧ The space between jurists and advocate at the Supreme Court is only a little more than six feet during oral arguments. As counsel for the state in Massachusetts v. EPA learned, the exchange of fire over that small divide is highly penetrating and usually hostile.

In Covering the Judiciary, I Most Recall Some Truly Great Lawyers
Richard Lazarus - Harvard University
Harvard University
Current Issue
Richard Lazarus

I wrote my first column in these pages exactly 25 years ago, and this is my last. Certainly not because I have run out of material. Environmental law in the courts is as important and active as ever. But simply because a quarter century seems like an opportune moment to pass this particular mantel on to another.

The Supreme Court has been a frequent, though not exclusive, focus of my columns. My very first discussed the thinness of the Court’s docket in October Term 1994, in sharp contrast to the preceding term, when the Justices’ decided seven significant environmental law cases.

The Massachusetts v. EPA greenhouse gas litigation was itself the subject of three columns. The first, published a month after oral argument in the D.C. Circuit, correctly predicted that, over Judge David Tatel’s dissent, Judges Raymond Randolph and David Sentelle were likely to reject the challenge to EPA’s decision not to regulate greenhouse gas emissions from new motor vehicles, though without embracing EPA’s view that GHGs are not air pollutants.

The second column, published a few weeks before the Supreme Court oral argument in the case, described the high stakes should the federal government prevail in its argument that the environmental petitioners lacked Article III standing and predicted (correctly) that “Justice Anthony Kennedy seems the most likely fifth vote favoring jurisdiction.”

Finally, the month after the Court’s ruling in Massachusetts, I published a column on Justice John Paul Stevens’ opinion for the Court: “A Breathtaking Result for Greens.” The first and last sentences were the same and both consisted of only one word: “Stunning.” The column also described the result as “breathtaking” and pointed out that Massachusetts was the first time that “environmentalists have both persuaded the Supreme Court to grant review over the federal government’s opposition and then won on the merits.” Almost 13 years later, that is still true.

My favorite columns during the past quarter century, however, have been focused not so much on individual cases but instead on specific lawyers who have played outsized roles in environmental litigation — as judges and justices, private, governmental, and public interest advocates, and legal scholars. Modern environmental law has enjoyed the company and good work of many extraordinary lawyers during the past fifty years and their contributions, at least as much as the results in individual court cases, are worthy of distinct recognition.

The first such column, published in December 1999, was titled “A Farewell to the Claiborne Style.” It celebrated the remarkable career of Louis Claiborne, who served for decades as the career deputy solicitor general of the United States. Claiborne, who oversaw the federal government’s environmental, natural resources, and Indian law docket at the High Court wrote exquisite briefs that uniquely combined striking intelligence, a flair for evocative rhetoric, and a puckish sense of humor.

Two columns published in 2001 and 2002, titled “Olson Stands Firm on the Mountaintop” and “Bishop Moves to Secure Court Win,” focused on the courageous advocacy of Ted Olson as SG and on Mayer Brown lawyer Timothy Bishop, who has been a leading industry lawyer of great skill for business interests for the past three decades. Another column, “Solicitor Drives Hard in Water Cases,” underscored the advocacy skills of two more government advocates: President Bill Clinton’s Solicitor General Seth Waxman and President George W. Bush’s Solicitor General Paul Clement.

The columns that allowed me to celebrate the passing of several of environmental law’s greatest lawyers, however, were those that made me appreciate the enormous opportunity that ELI’s treasured Steve Dujack has provided me by inviting me to write this column.

In the “Loss of Environmental Law’s Foremost Stewards,” I had the great privilege of reflecting upon two of our heroes, whom I described as “environmental law’s founding fathers”: David Sive and Joe Sax. In combination, Sax as a legal scholar and Sive as a litigator, they championed the essential role that citizen litigation could play in defending the natural environment.

My May 2017 column, titled “Public Interest Bar Loses a True Giant in Citizen Jurisprudence,” provided a personally meaningful moment to celebrate the inestimable Bruce Terris, who devoted his own career to citizen suit enforcement of the nation’s air and water pollution control laws. Terris was a warrior, and he formed in 1970 the first environmental public interest private law firm and for 47 years epitomized the best of that first generation of environmental litigators. Terris made his mark with “environmental law in the courts,” making this last tribute a fitting way to close my final “In the Courts” column.

In Covering the Judiciary, I Most Recall Some Truly Great Lawyers.

Two Cases Counter Trend of Less Importance to Environmental Law
Richard Lazarus - Harvard University
Harvard University
Current Issue
Richard Lazarus

The justices seem less interested in environmental law these days. Perhaps that’s a good thing. The past decade or so has certainly witnessed far fewer significant environmental cases than in earlier years. When I first began writing this column, in the mid 1990s, the Supreme Court would decide as many as nine major environmental cases in a single term. The justices now decide on the merits only half as many.

The most recently completed term is emblematic. The Court decided no case arising under any of the nation’s most important pollution control statutes, which were once the bread and butter of the Court’s environmental docket. The most we can muster from the last term as “environmental law” was Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, a case raising a fairly insignificant question under the Endangered Species Act, and Sturgeon v. Frost, an even more narrowly focused case addressing whether a river in Alaska is “public land” within the meaning of the Alaska National Interest Lands Conservation Act.

The more important two cases from the last term bore a less direct relationship to environmental law. The first, Virginia Uranium, Inc. v. Warren, ruled that the federal government’s exclusive authority to license nuclear power plants did not preempt a state prohibition on uranium mining. And, the second, Knick v. Township of Scott, held that property owners can bring regulatory takings claims against state and local governments in federal court in the first instance without first exhausting state court remedies.

The term that opened this fall is similarly unlikely to be a blockbuster for environmental law, but it already boasts two potentially significant environmental law cases, one arising under the Clean Water Act and the other under the Comprehensive Environmental Response, Compensation, and Liability Act.

In County of Maui v. Hawai’i Wildlife Fund, to be argued in early November, at issue is the jurisdictional reach of the Clean Water Act’s requirement that all point source discharges into navigable waters of the United States are unlawful absent a permit. Maui asks whether a conveyance of pollutants escapes the act’s permit requirement when the pollutants reach navigable waters only after first being transmitted through groundwater. The county injects millions of gallons of contaminated effluent every day into wells that then directly reach the ocean through an aquifer. The district court and the court of appeals both agreed with the Hawai’i Wildlife Fund that the Water Act’s permit requirements apply to the county’s activities.

Underscoring the potential significance of the decision, 29 amicus briefs have been filed in the case. One of those, in support of the county, was filed by the solicitor general on behalf of the Environmental Protection Agency. The SG’s participation is, by itself, not surprising. What is more unusual is that the federal government’s position had previously favored the environmental plaintiffs when this same case was before the lower courts. With a change in presidential administrations in 2017, however, came a change in position.

The outcome in Maui, given the current makeup of the Court, will likely be decided by the conservative textualists, especially Justice Neil Gorsuch. If Gorsuch can be persuaded that the text offers no wiggle room to allow an evasion of the Water Act’s requirements, the environmentalists might be able to secure a win before a Court that otherwise rarely rules in their favor.

The second environmental case already on the Court’s docket, Atlantic Richfield Co. v. Christian, is a sleeper that could prove to be the more significant of the two, with long tentacles. The precise issue in Atlantic Richfield is whether CERCLA bars a state common law claim in state court for restoration cleanup of a Superfund hazardous waste site because of its potential interference with EPA-ordered cleanup remedies. Here, too, the outcome of the case is likely to turn on the votes of some of the Court’s most conservative members, particularly Justice Clarence Thomas. Thomas has previously expressed skepticism about the kind of broader federal “conflict preemption” theories relied upon by Atlantic Richfield.

But the case’s greatest significance may be the Court’s treatment of CERCLA’s general provision that expressly saves from preemption state pollution control laws. Both Atlantic Richfield and the SG in a brief supporting petitioner offer a narrow reading of CERLCA’s savings clause. If adopted by the Court, such a reading might affect anticipated Air Act litigation in which industry argues that state laws that fill regulatory gaps left by a retreating Trump Administration are preempted notwithstanding a similar savings clause in the statute.

Two cases to watch.

Two Cases Counter Trend of Less Importance to Environmental Law.

Court Says World Bank Can Be Sued. But More Remedies Needed
Bruce Rich - Environmental Law Institute
Environmental Law Institute
Current Issue
Bruce Rich

In February, the Supreme Court ruled that the World Bank’s International Finance Corporation as well as other international organizations are not totally immune from lawsuits in the United States. The complaint, Jam v. International Finance Corporation, was filed in the D.C. District Court in 2015. It alleged that the 4,150 megawatt Tata Mundra coal power plant in India, financed with a $450 million loan by the IFC in 2008, contaminated drinking and irrigation water of local farm communities, severely harmed fisheries and fisherfolk, and adversely affected through air pollution public health, inducing involuntary economic and physical displacement.

Though the IFC’s compliance advisor/ombudsman confirmed these allegations in 2013 and again in 2015, management did not act to remedy the problems. Earth Rights International and the Stanford Law Supreme Court Clinic, representing the affected communities, challenged the IFC’s claims to almost complete legal immunity, based on the International Organizations Immunity Act. That 1945 law grants international organizations the same immunity from lawsuits as sovereign states, an immunity that then was almost total. Both the trial court and the appeals court for the D.C. Circuit supported the IFC’s arguments, decisions that the Supreme Court reversed with a 7 to 1 majority.

The main issue was a narrow one: whether the language in the 1945 statute granting the “same” immunity to international organizations as to sovereign states should be interpreted in a “static” or a “dynamic” fashion. In other words, whether the near total immunity that sovereign states enjoyed in U.S. law in 1945 would be frozen in time for international organizations, although the 1976 Foreign Sovereign Immunities Act created broader exceptions for lawsuits against sovereign states.

Chief Justice Roberts ruled that since the FSIA changed the legal parameters for immunity of sovereign states, then the “same” immunity for international organizations also changed. He cited the “reference canon” of statutory interpretation, namely that when a general subject (rather than a specific law) is referred to in a statute, the legal conditions concerning that subject change when relevant future legislation changes.

Roberts wrote that the 1976 FSIA provided that sovereign states (and thus the IFC and other international organizations) could be sued for their “commercial activities,” giving an opening for the plaintiffs to pursue relief. But, he emphasized, “as the government suggested at oral argument, the lending activity of at least some development banks, such as those that make conditional loans to governments, may not qualify as ‘commercial’ under the FSIA.”

And even if all multilateral development bank lending activity were to qualify as commercial, it would also have to be shown that there is a “sufficient nexus” to the United States and that the lawsuit is “based upon” the commercial activity or acts performed in connection with the commercial activity. Remanding the case to the appeals court for further deliberation based on the Supreme Court’s ruling, Roberts noted the government argument that “it had serious doubts whether petitioner’s suit, which largely concerns allegedly tortious conduct in India, would satisfy the ‘based upon’ requirement.”

After four years, the litigation could continue substantially longer. For poor farmers and fisherfolk in India, delayed justice is denied justice more than for most plaintiffs. Litigation in U.S. courts seeking redress for the over half million victims of the 1984 Union Carbide Bhopal chemical disaster continued until 2012. Political pressure by major donor governments on the IFC to assume responsibility for its negligence would provide quicker and more effective redress.

The negligence extends beyond the needless harm inflicted on local poor people. Tata Mundra is also one of the 50 biggest point sources of greenhouse gas emissions on Earth. And the inexpensive electricity rates that Tata and the IFC touted to justify the project depended on import of highly subsidized Indonesian coal. Indonesia halted the subsidies, and in 2011 Tata Power asked the Indian government — in vain — to allow it to double the rate it charged customers, since the plant was losing $250 million annually.

In 2012, Tata Power’s executive director announced that henceforth the company would only invest in wind and solar, both domestically and abroad. “Why would anyone want to invest at this stage in a coal project?“ he said. Then Standard and Poor’s and Moody’s downgraded the company’s debt. In 2017 Tata offered to sell 51 percent of its equity in the multi-billion-dollar coal plant to several Indian states for one rupee. There were no takers.

Court says World Bank can be sued. But more remedies needed.

Climate Litigation Has at Least for Now Dodged a Possibly Fatal Blow
Richard Lazarus - Harvard University
Harvard University
Current Issue
Richard Lazarus

This past fall, the “Trial of the Century” was scheduled to commence in a federal court in Oregon. The plaintiffs? Twenty-one children. The defendant? No less than the United States. And the accusation? That the federal government had violated the children’s constitutional rights by “creating, controlling, and perpetuating a national fossil fueled based energy system, despite long-standing knowledge of the resulting destruction.”

The remedy sought by the plaintiffs was no less ambitious than their claim that the Constitution’s Due Process Clause confers on individuals the right to “a stable climate system capable of sustaining human lives and liberties.” Plaintiffs sought a court order directing the government to implement “an enforceable national remedial plan to cease the constitutional violations by phasing out fossil fuel emissions and drawing down excess atmospheric CO2.”

The 50-day trial seemed unstoppable only days before its start date. The judge had repeatedly denied the government’s motions to dismiss the complaint. No less significantly, by declining to certify the case for interlocutory appeal, the judge had refused to allow the federal government the ability to appeal those rulings before trial.

Nor had either the Ninth Circuit or the Supreme Court been willing to come to the federal government’s rescue. The Ninth Circuit had twice denied the Department of Justice’s mandamus petitions to hear their arguments for dismissal before trial. And the Supreme Court in July had rebuffed the solicitor general’s request to stay the trial court proceedings.

Everything shifted, however, on the eve of trial. The case was postponed and its future remains uncertain. Reversing herself in late November, the trial judge agreed to certify the case for interlocutory appeal and the Ninth Circuit has scheduled the case for expedited consideration.

So what happened? What prompted the trial judge to change her mind?

When the justices denied the solicitor general’s request for a stay in July, too little attention was paid to the order’s fine print. While formally denying the government’s requests, the High Court simultaneously left little doubt it believed that the trial judge should have certified the case for interlocutory appeal. The July order set forth the central statutory touchstone for certification — a case raising a “controlling question of law as to which there is a substantial ground for difference in opinion” — and then offered the Court’s clear view that the “striking breadth of the plaintiffs’ claims present substantial grounds for difference in opinion.”

That is why when the trial court failed to take the initial hint and continued to insist on trial, the justices double-downed when the solicitor general a few days before trial filed a mandamus petition with the Court and again asked the justices to stay the trial. This time Chief Justice Roberts immediately stayed the trial to allow the full Court to consider the motion. And, although the Court once again denied the stay request, here again the fine print of the Court’s order left little doubt that it wanted the Ninth Circuit and trial judge to clean up this mess so that the Supreme Court would not have to take the extraordinary step of intervening.

The exclusive reason the High Court gave for denying a stay was not that mandamus was unwarranted but that the Supreme Court need not be the one to grant mandamus because there was good reason to believe the Ninth Circuit would. In Supreme Court-speak, that is about as close as one can get, short of a formal reversal, to the Court telling the Ninth Circuit to fix the problem. The wording was no doubt a compromise reached by the chief and some of more liberal justices seeking to avoid a worse outcome.

The Ninth Circuit plainly got the hint. A few days later, the appeals court stayed the district court proceedings and asked the trial judge to “promptly resolve” the government’s motion to reconsider the denial of interlocutory appeal. And, while insisting that it had not changed “its belief that this case would be better served by further factual development at trial,” the district judge subsequently made clear she understood what she was being asked to do, and certified the case for interlocutory appeal.

Indeed, the entire turnabout was so head-spinning that one of the three Ninth Circuit judges dissented from that court’s decision to hear the appeal. Judge Michelle Friedland wrote she did not believe the trial judge was truly “of the opinion” that interlocutory appeal was warranted but had “felt compelled to make that declaration.”

As disappointed as the plaintiffs no doubt are, I suspect climate litigation has at least for now dodged a fatal blow. Had the lower courts not retreated and the justices been forced to act, it is not hard to imagine the harsh ruling that would have likely resulted in such an extravagant case — with negative repercussions affecting all climate jurisprudence.

It is not hard to imagine the harsh ruling that would have likely resulted.

Climate litigation has at least for now dodged a possibly fatal blow.

Kavanaugh's Ascent Is Enormously Significant for Environmental Law
Richard Lazarus - Harvard University
Harvard University
Current Issue
Richard Lazarus

Justice Brett Kavanaugh. What does his joining the High Court mean for environmental law? How will he differ from Justice Anthony Kennedy, for whom he clerked and now replaces?

Normally, any such comparative inquiry would be hopelessly speculative even when, as here, the new justice has previously served as a federal appellate judge. Most judges, as was true for Neil Gorsuch on the Tenth Circuit, have decided very few environmental law cases.

Kavanaugh, however, is a rare counter-example. The docket of the D.C. Circuit, on which Kavanaugh served for 13 years, includes a heavy dose of environmental law. And, although the three-judge panels for those environmental law cases were decided by random draw, Kavanaugh participated and otherwise wrote in a disproportionately high number, especially Clean Air Act cases. Moreover, because the Supreme Court (including Kennedy) reviewed several of those cases, Kavanaugh’s appellate court record offers a solid basis for gleaning both how he is likely to vote as a justice and how his votes might (or might not) differ from Kennedy’s.

Here’s what environmental lawyers can fairly expect from Justice Kavanaugh. First, he will be a reliable vote against broad readings of EPA’s statutory authority to enact pollution-control regulations. This will be true when the agency is challenged by environmentalists for embracing narrow interpre-tations of its authority. And it will be true when industry challenges EPA for adopting broad interpretations.

In both respects, Kavanaugh will likely mirror the votes of Justice Antonin Scalia when he was on the Court. The difference will be style rather than substance. Kavanaugh will lack Scalia’s bite and bark.

Kavanaugh’s votes on EPA’s regulatory reach will be markedly different from Kennedy’s. While the retired jurist sided with Scalia in many cases, he also departed from him in several significant environmental law cases in which Kavanaugh, had he been on the Court at the time, would have voted differently. Unlike Kennedy, a Justice Kavanaugh would have denied Justice John Paul Stevens the majority he had for the Court’s ruling that the Clean Air Act authorizes EPA to regulate greenhouse gases (Massachusetts v. EPA), he would have provided Scalia with the majority he lacked for his narrow reading of the geographic reach of the Clean Water Act (Rapanos v. United States), and he would clearly have struck down EPA’s interstate air pollution regulation (EPA v. EME Homer Generation LP.), given that the justices, including Kennedy, reversed Kavanaugh’s opinion for the D.C. Circuit on that issue.

For that same reason, many of EPA’s most ambitious regulatory programs adopted during the Obama administration, such as the Waters of the United States Rule, would likely be roughly received with Kavanaugh rather than Kennedy on the Court. The only saving grace for EPA’s Clean Power Plan, should its legality ever somehow reach the justices, is that Kavanaugh would be recused, given his participation in the D.C. Circuit case.

Kavanaugh’s record further suggests a readiness to invoke constitutional law as a basis for limiting the reach of federal environmental law. Most notably, he has frequently invoked constitutional separation-of-powers principles in repudiating broad readings of EPA regulatory authority. According to Kavanaugh, those principles support judicial rejection of congressional delegation of agency authority to address “major issues” absent clear and specific evidence of such legislative intent.

By contrast, Kavanaugh’s views on the Article III standing of environmental citizen suit plaintiffs are not without some ambiguity. His record is less one-sided. But it seems safe to assume that he will be less receptive to such suits than Kennedy. What is unclear is whether he will replicate Scalia’s consistent hostility to citizen standing.

The same is true for Congress’s authority under the Commerce Clause to enact environmental laws. Kavanaugh seems poised to be less sympathetic than Kennedy to a broad reading and there is too little known to speculate whether he will embrace Scalia’s narrow view of Congress’s constitutional reach.

One area of environmental law, however, for which we have no data is Kavanaugh’s views on the regulatory-taking issue. Kennedy was the decisive vote and, over Scalia’s dissent, frequently voted to reject takings challenges to governmental restrictions on development in environmentally sensitive lands. Kavanaugh had no takings cases on the D.C. Circuit (with those cases redirected to the Federal Circuit). If a true originalist like Robert Bork, he will give little credence to regulatory takings claims. But if more of a selective originalist like Scalia, Kennedy’s departure may signal a major shift in the Court’s takings precedent as well.

One thing is clear. Justice Kavanaugh’s confirmation is enormously significant for environmental law.

We know his record.

Kavanaugh's ascent is enormously significant for environmental law.