EPA controls auto emissions

[Beet]

I don't think this is a terribly good example of a Supreme Court decision that would make for a useful discussion on either totally policy grounds or totally legal grounds. For one thing, it is clearly not a debate over just policy. It is a decision of the U.S. Supreme Court, a body charged with reaching a purely legal conclusion.

On the other hand, it is impossible to separate out the policy ramifications of this case, for it is both policy-consequential and consequential on a high profile issue that splits along similiar lines as the main US political divide. Those who try to disentangle these two elements are further marred by the fact that the four most conservative justices on the court (or, perceived that way, but likely with well founded cause) also happened to agree with the legal interpretations that led to the politically congruous outcome, and same (but vice-versa) with the moderates and liberals. Finally, there is the strike that this forum is centered around politics, and most of the people here are likely to be especially interested in the policy ramifications.

What would be more interesting is a case that mixed things up legally and ideologically. Then you could look at whichever justice didn't fall into line politically and read his or her argument, at least, as a purely legal one. Such cases are rather rare, and I highly doubt that is a mere coincidence. Briefly reading through the writing styles of both the opinion and the dissent would certainly confirm an impression that the justices were at least as interested in defending their positions as reaching a sound finding (the use of ad hominem defenses, for example, is unnecessary for logical completeness but useful for rhetorical appeal).

But it would seem here that the arguments above are merely peripheral to the issue, even though they seem to be valid. It could be that the liberal and moderate justices reached the decision that leads to the liberal policy outcome while the conservative justices reached the opposite decision merely by chance; and that the fact that we are discussing a politically ramificious case in a political message board when we are much less likely to discuss cases the media does not report on is highly irrelevant. The only thing that matters, so the argument goes, is the legal reasoning. And in theory, this is correct.

However, turning to the legal reasoning, one finds reference to Article III, section 2, that the Supreme Court's jurisdiction will extend to "controversies", and one further finds agreement among both opinions that this section applies. What is one of make of this? How can one take this Article and resolve a case regarding whether the EPA has followed the law with regard to global warming, and whether the state of Massachusetts has standing to sue? This Article provides no answer to these questions at all. One would imagine that the Founding Fathers, when they wrote Article III, had not the slightest idea of global warming or the EPA. But ah, there is more. We further find reference to a case called Flast v. Cohen (1968), in which "the business of federal courts to questions presented in adversary context and in a form historically viewed as capable of resolution through the judicial process" in the decision, and, in the dissent, one called Allan v. Wright (1984) in which "a plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief"; and singular quotes pulled form what are surely lengthy discussion and cases filled with nuances which, in turn, reference yet prior cases, which reference yet prior cases, et cetera et cetera. And those are just two quotes. Furthermore, none of them seems to obviously derive from Article III, which provides about as flimsy guidance to the Court today in this case as a blade of grass would in holding up the foundation to your house.

The theoretical "basis" of our discussion then, is at best esoteric and gray, at worst utterly unintelligible. It never ceases to astound me why in the fields of engineering, physics, or mathematics, all guided by logical reasoning, as law purports to, you rarely if ever see those who have utterly no clue what they are talking about pretending to know more than the highest authorities in the nation, those who have studied these very issues for decades. Yet when it comes to law, any idiot feels competent to say whether the Supreme Court has made or not made the correct decision.

In many ways, there are parallels between law and the entire global warming debate. Why are politicians like Al Gore or his opponents even concerned with the science of global warming, in a political context? Do they feel somehow competent and knowledgable more than the actual scientists involved? Why has what should be a matter based on reasoning become a matter based on politics? This is, in the words of the late William Brennan, "arrogance cloaked in humility."

And so we return the reality.

[Beet]

angus thank you for your reply.

I must respectfully disagree with your conclusions, if not your sentiments. I think there are a few different issues here. (1) One is the issue of judicial power: do judges have too much power or discretion? (2) Another is the issue of the Constitution and how best to interpret it: are we interpreting it as we should or not? (3) Finally there is the issue of outcomes: What role do outcomes play in the law, and what role should they play?

To answer the first question, the belief that judges should not "legislate from the bench" is a fair one: in our society we believe that lawmaking ought to reflect the popular will, and many judges are not elected. Hence they should not be making what seems to be law.

But law is two things-- first, it is a decision prescribing an outcome, and second, it holds universal and eternal applicability. Without terminating the common law tradition of precedent, we cannot deprive judges of the ability to make universally applicable decisions with applicability across the judge's area of jurisdiction. To do so we must eliminate the tradition of precedent. And second, without eliminating judges' abilities to prescribe outcomes, we cannot take away their appointed decision-making power. To take away their power we must either make them elected, or eliminate the judiciary altogether except as an advisory body.

Any of these reforms is aimed squarely at the problem of judicial power and how to make it more democratic or reduce it if it cannot be made more democratic. Their merits and demerits can be debated, but I cannot see how if your complaint is that judges are legislating from the bench, your logical aims could be anywhere else but in the types of reforms I mentioned above.

To answer the second question, the matter of whether we are interpreting the Constitution correctly? Since the Constitution is the highest law of the land, and in a country held together to great deal by its principles, it is important that we remain true to those principles and interpret the Constitution correctly. But I must argue, not due to personal preference, but simply due to the truth as I see it, that there is not always one right way to interpret the Constitution. To take just one example, any layperson can forgiven for being shocked at looking at how tests such as

"A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct"

derived from

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

Having read both the first statement and the second, no reasonable person can say that the first necessarily derives from the second. Instead, it is more likely that as the law developed, the legal profession at the federal level as at other levels found it necessary to formulate a way to dispose of frivolous and meaningless suits, and judges required more precise guidance in determining which suits were frivolous than the words "cases" and "controversies" spelled out in the Constitution.

In other words, the founding fathers were not God; they could not have foreseen every possible controversy that would ever arise in this great nation that could possibly have Constitutional relevance and written down precisely what interpretation was "correct"; and even if they could they probably would not want to. So Constitutional law in most areas is genuinely ambiguous. So what role should the supplementary work of interpretive material-- the precedent, the journal, the peripheral documents shedding light on legislative or founding intent, the legal traditions, and all the nuances of American legal culture and thought-- play? For it is this latter stuff, after all, which constitutes the work of the legal profession, and their contribution to society. It is this, when in relation to the Constitution, which is referred to in the sense of an organic, or "living" Constitution; a life which has made the Constitution more relevant and useful to the country and its people.

Thirdly, a very important question is, what role do outcomes play in law, and what role should they play? Of course, the idea of outcomes playing a role in legal process is repugnant to the very American principle of the rule of law, because the entire idea of the rule of law is that a country is ruled by principles and not whims or decrees by people such as judges, especially if unelected. Rule by principle increases the chances that everyone will have a fair shake, it makes the law more predictable, and it prevents power from being concentrated in too personal hands.

However, if our society makes itself believe that this is all it thinks of in law, then our society is being hypocritical. There are other things that people care about as well, and for good reason. National survival, for instance. People are far more willing to tolerate the bending of law the more they feel their personal safety in jeopardy. To take an extreme example of an extreme example, in the movie the 300, the heros maintained moviegoing audiences' support even though they broke the laws of Sparta, because had they adhered to the law rather than practical considerations, Sparta would have been conquered. Audiences instinctively understand that the law, just like almost all other principles we truly value, ultimately derives its legitimacy from a higher source. It exists to serve the people, not the people to serve the law.

To summarize my points, firstly that although outcomes are not everything, they do matter; secondly that the law is sometimes genuinely ambiguous, and so that decision or opinion which adheres more closely to law is sometimes only very marginal; and finally that judges in the current makeup of our legal system are by nature wielders of power of a legislative nature.

On top of this, it seems clear to me that there is a substantial political movement that has adopted facetious legal arguments for the sake of achieving its political ends. They decry things such as judicial power yet are not eager to impose reforms that would truly reduce that power, such as reducing the scope of judicial jurisdiction or making more judgeships elected. They decry judicial partisanship yet are not eager to wean federal courts away from political appointment-based and toward civil-service based, where promotion would not be due to some politician's favor but merit within the profession. They want to do everything by Constitutional amendment yet have no eagerness to make Constitutional amendment a practical means by which to make changes. Their solution has been one and one only: elect Republicans, and appoint politically conservative judges, those judges who agree with them on political issues. Substantial academic literature has developed with overwhelming evidence that the political party of the appointing President of federal judges has a direct impact on outcomes, particularly politically salient ones, regardless of the legal area or issue in question. This backlash movement can be seen as early as the Southern Manifesto of 1956, which prophetically announced the rhetoric and the veil of deceit upon which it depends. It has won Republican domination of the Supreme Court for a generation and virtually every appeals circuit in the nation, yet is still not satisfied.

I will not likely convince you of anything in a forum post. Perhaps if you read a book that makes similiar points as this, but with more thoroughness and evidence, and by someone much more qualified in the law than I, your mind might be affected. I have neither the time nor energy to research or write such a book. But I truly believe that if I were to seek supporting evidence, it would be easily found.