As we enter the last two or three weeks of the Supreme Court's session, court watchers turn to a guessing game of which Justice has which opinion. What drives the guessing game are the informal rules of the court and two key pieces of data.
For the purposes of the guessing game, there are two key informal rules. First, opinions are assigned by the senior Justice in the majority (with the Chief Just being automatically senior to the eight Associate Justices). Second, in making assignments, the Justices are conscious of the work load of each of the chamber and try to keep the assignments relatively balanced. Of course, the alignment of justices on individual cases can frustrate this second rule.
The two key pieces of data are the opinions already issued by the justices and the number of cases argued (both for each sitting and the entire term). Not considering the two cases that were dismissed after argument, the Supreme Court heard 68 cases this year. Based on that number, each Justice should have seven or eight majority opinions. Furthermore, through January, there were 44 cases requiring opinions (with 24 between February and April). One would expect each Justice to have five opinions through January (one should have four) and two or three for the remainder of the term (and most likely to have two opinions from March and April given that there were 17 cases in those two months).
At the present time, Justice Kennedy has issued eight opinions. Based on the above, he should be done for the year (or at most have one more). There is also the quirk that, notwithstanding the above, Scalia actually had six opinions through January.
Looking at January, with four cases outstanding, three Justices do not have an opinion from January -- Justice Breyer (three total through December), Justice Alito, and Justice Kagan (both with four total through December). Two other Justices have four total through January (the Chief Justice and Justice Sotomayor). Based on the above, I think that the Chief Justice is most likely to have the Noel Canning (recess appointment) case. Since becoming Chief Justice, Justice Roberts has tended to keep the biggest cases for himself. Of the other three cases, I can see Justice Breyer getting McCullen (the abortion protester case), especially if there is a consensus that the Massachusetts law was just a bit too restrictive. My hunch says that Justice Alito is likely to get Harris (the home health care provider unionization case).
In February, with two cases outstanding, the three strongest candidates to have the opinions are the Chief Justice, Justice Thomas, and Justice Ginsburg. My hunch says that the Chief Justice has the Climate Change cases. The other case (involving Haliburton) involves the basic theory of security fraud. If the Supreme Court is not making a major change, Justice Ginsburg will have the opinion (which will be her eighth of the term). If the Supreme Court is making a major change, Justice Thomas will have the opinion.
There are still too many undecided cases from March and April (11 total remaining with six opinions issued) to make any firm guesses (other than Kennedy not having any and Ginsburg or Sotomayor -- both already at seven opinions -- maybe not having any). For the reasons noted above, my hunch says that the Chief Justice will have kept Hobby Lobby (contraceptive coverage) for himself.
Everybody loves a good sequel. Hollywood and the publishing industry love sequels and have the formula down to a science.
The Supreme Court appears to love a good sequel too. In twenty-eight years since the Supreme Court made it more difficult to discriminate in jury selection, they have taken up almost twenty cases to fill out the details of how that new rule would work in practice. Similarly, almost ten years ago, the Supreme Court decided to return to the original rules on when an out-of-court statement violates a defendant's right to confront witnesses. Over the past ten years, the Supreme Court has heard six cases (and will probably add a seventh case for next term) to figure out how those rules apply to the modern criminal justice system.
Among the cases left on the docket are two very big sequels -- both of which are likely to become major issues in the fall races.
The first of the two is the Employer Mandate cases dealing with the requirement that the insurance policies available to employees must include coverage for contraceptives (a sequel to the 2012 decision upholding the Affordable Care Act). Especially, as seem likely, if the Supreme Court decides this case by applying the Religious Freedom Restoration Act rather than the Free Exercise Clause, the decision will be an easy weapon for both sides in the fall races. If the employees and the U.S. government win, the decision becomes Exhibit A in the fictional "War on Religion" that Faux News tries to push. If the businesses win (especially if it is the five Republican appointees against the four Democratic appointees), it is another example of the Republican War on Women (which is less a war than the indifference of Republicans to the difficulties that women face).
The more interesting case is the Climate Change cases. Back in 2007, the Supreme Court found that the Bush administration was not following the Clean Air Act by ignoring the impact of carbon dioxide and other greenhouse gases on climate change. Since then, the Supreme Court in a first sequel ruled that any regulation had to be through the Clean Air Act, not through a common law nuisance action. Now, in the second sequel, the Supreme Court is examining part of the regulations -- particular the part that impacts power plants and coal.
Since the first ruling, the Republicans have tried to push the meme of a war on coal. This fall, two key Senate races (West Virginia and Kentucky) will take place in states with a significant coal industry. How, the Supreme Court determines the Climate Change cases could have a potential impact on these races. The exact issue in the current case is whether the regulations adopted by the EPA are justified by the Clean Air Act -- specifically whether the finding that carbon dioxide (and related gases) are a pollutant for the purposes of regulating cars also means that they are a pollutant for the purposes of power plants.
There are three possible results in this case. First, the Supreme Court could find that the EPA is correctly applying the Clean Air Act, and that, if anything, it has cut industry a break by phasing in the new regulations. Second, it could find that the EPA, while not compelled to go as far as it has, is still reasonably interpreting the statute. Finally, it could find in one or more ways that the EPA has departed from the statutory language.
From the point of view of the Democratic candidates in Kentucky and West Virginia (both state officials), the best possible result is the first option -- a holding that the EPA is merely doing what the Supreme Court ordered back in 2007. In this scenario, there is an argument that the EPA has had no choice or discretion in the matter and that the problem is not that the EPA is anti-coal but that the current law is anti-coal. In this argument, while it probably was not possible to completely prevent some negative impact on the coal industry, there have been proposed amendments to the Clean Air Act that might have postponed the worst of the impact and given the coal industry time to adjust -- amendments that went nowhere largely because Mitch McConnell blocked them in the Senate (and Shelley Capito joined with her fellow Republicans to oppose them in the House). The question for the fall is whether Democrats in coal states can convince the voters that Republican obstruction of moderate compromise on the Clean Air Act is the equivalent of Nero fiddling while Rome burned. Control of the Senate may turn on this issue.
On Friday, the Supreme Court returned from its annual extended winter-break with its first conference of 2014. January at the Supreme Court marks a transition between the first "quarter" of its term to the second quarter.
In the first quarter, the Supreme Court is primarily hearing arguments in cases and deciding what cases to hear for the remainder of the term. With Friday's grant of review to eight cases for the April argument docket, the April docket will probably have more cases than the February docket. In the first quarter, opinions are issued in only the most clean cut cases. (Of the six opinions issued on cases argued in October, November, and December, all six were 9-0 decision with only two concurring opinions -- five from October and one from November).
In the second quarter, in addition to hearing arguments on the remaining cases, the Supreme Court begins to issue opinions in some of the semi-controversial cases and begins granting cases for the following term.
As far as cases from the fall that still have not been decided, there are several potentially big cases. From October, the Justices are still working on their opinions in McCutcheon (the challenge to the "aggregate" limits that individuals can contribute to all federal candidates combined) and Schuette (the challenge to the Michigan state constitution ban on affirmative action). From November, the case generating the most media interest is Galloway (the challenge to the opening prayer at town council meetings). Finally, from December, the big cases are probably EME Homer City Generation (a challenge to the EPA rules for calculating the interstate impact of pollution and regulating polluters when they contribute to pollution problems in near-by metropolitan areas) and Lozano (the second case in recent years to interpret a provision of the Hague Convention on Child Abduction, this time looking at whether the time for raising a claim is tolled if the abducting parent hides the child).
With new arguments starting on Monday, January is going to be a big docket with 12 arguments on five days. The biggest case is probably the Noel Canning case involving the rules governing recess appointments. This case was even bigger before the recent de facto change to the filibuster rules, but given that there will be times when the White House and Senate are controlled by different parties, this case will still be significant.
The other big case in January is McCullen v. Coakley. This case involves a challenge to a Massachusetts law creating a buffer zone around abortion clinics. This law creates a larger buffer zone than has previously been approved by the Supreme Court. While technically a First Amendment case, this decision will be the first implicating abortion rights since the 2007 decision upholding the federal ban on partial birth abortions. Given what is in the pipeline, it is unlikely that the Supreme Court will go another seven years without hearing a case on abortion.
Two cases that may become big are United States v. Quality Stores and Paroline v. United States. Quality Stores raises the question of whether severance packages are subject to Social Security taxes. Given the current cap on income subject to Social Security taxes, this case is not as big as it could be. If that cap were lifted as part of Social Security reform, this case could be huge. Paroline involves the calculation of restitution for victims of child pornography. The issue is the degree to which the victim has to show that her damages are caused by the individual defendant (typically someone who downloaded a handful of photographs as opposed to the actual producer).
Last year, I discussed the ruling of the U.S. Court of Appeals for the District of Columbia Circuit upholding the EPA's first round of regulations on greenhouse gases. To quickly summarize, the EPA had issued four sets of regulations: an endangerment finding (concluding that greenhouse gases did contribute to climate change and therefore met the definition of a pollutant for purposes of mobile sources); a "tailpipe" rule (establishing regulations to reduce greenhouse gas emissions from motor vehicles and other mobile sources); and "timing" and "transition" rules governing emissions from stationary sources (e.g. power plants).
Not too surprisingly, the plaintiffs in those cases -- several "red" states and business groups separately filed requests for the Supreme Court to review different aspects of the D.C. Circuit's ruling. Last Tuesday, the Supreme Court decided which parts of the case it would take. The Supreme Court denied three of the nine applications in their entirety. For the remaining six, the Supreme Court only took one issue -- whether the EPA's traditional position that, if a substance qualifies as a pollutant for mobile sources, the EPA is also authorized to regulate emissions of that substance from stationary sources.
By limiting the case to this one issue, the Supreme Court let stand the finding of the EPA that greenhouse gases are a pollutant and the finding that the Clean Air Act requires the EPA to regulate motor vehicles to reduce the level of greenhouse gases. In doing so, it has dramatically undermined the false claim that the EPA's regulation of greenhouse gases is outside the scope of the EPA's authority.
More significantly, the one issue on which the Supreme Court did grant review is not a new issue and is not limited to greenhouse gases. Instead, it is a position that the EPA has consistently applied for the forty years of its existence. The consistent interpretation of the Clean Air Act by the EPA is an argument in favor of the majority upholding the current set of regulations. A contrary interpretation would dramatically change how the Clean Air Act is applied across the board and would call into question multiple regulations, but only on technical grounds. The EPA's current bottom line is that the definition of a pollutant is the same for all parts of the Clean Air Act so a finding that a substance is a pollutant for one part of the Clean Air Act is sufficient to allow regulation under all parts of the Clean Air Act. If the Supreme Court finds that this is not the case, presumably the Supreme Court would explain how the requirements for the different parts of the Clean Air Act differ. As such, ultimately, most if not all, of the regulations governing various pollutants from stationary sources would be re-adopted after those additional findings where made including the regulations on greenhouse gases.
Bottom line is that last Tuesday's ruling was a big setback to climate change deniers; now if only that message would sink in on Capitol Hill.
Technically, the Supreme Court term begins each year on the first Monday in October. And it does, for the purpose of assigning case numbers and the first argument of the term. In reality, it begins with the "Long Conference." The Long Conference reflects that there are four unofficial parts to the Supreme Court Term (described in more detail as an add-on at the end of the post).
The essential task of the Long Conference is to dispose of three-months worth of pending applications for review and to begin the process of filling the Winter/Spring argument calendar. Before the Supreme Court concluded its work on opinions in June, they accepted 42 cases for argument. The fall argument calendar contains thirty-six of these cases. In theory, that leaves six cases (because of the unusual posture of one of the cases actually five cases) to be argued in the Spring. However, there are twenty-three days of argument between January and April. At the typical rate of two cases per argument day, that means the Supreme Court needs another forty or forty-one cases. Of most significance, the Supreme Court needs at least five more cases for January. (The sheer number of cases for the Long Conference creates a perception among lawyers that petitioners want to delay filing their cases to assure that it is heard on one of the later October or November or December conferences while respondents try to extend the deadlines on their responses to delay their cases from a June conference to the Long Conference.)
At the present time, the carry-over cases (and the number of carry-over cases indirectly influences how many cases "must" be accepted in October, November, and December to fill the calendar) include some major cases. In one case from Massachusetts. the Court is being asked to reconsider the permissible scope of state laws governing protests near abortion clinics. On the other side of the coin, the Court is also potentially hearing a case from Oklahoma on the validity of Oklahoma's restrictions on the use of the "morning after" pill -- potentially because the Supreme Court has asked the Oklahoma courts for a more detailed explanation of the actually scope of Oklahoma's law. The Supreme Court also has a case on the proof required before a defendant convicted of possessing or distributing child pornography can be ordered to pay restitution to the victim of that child pornography. Lastly, the Supreme Court will consider the meaning of the recess appointment clause.
While we will not know for sure until after Monday, the most significant of the cases are the challenges to the first batch of regulations on greenhouse gases. Given the closeness of the Supreme Court's decision in Massachusetts vs. EPA, there is a good chance that some of the Justices will want to take this case to undo these regulations.
While not yet set for any given conference, applications about the requirement in the Affordable Care Act that employers must provide insurance coverage for employees that includes contraceptive coverage are now pending. Given that there is a conflict in the lower courts about whether this requirement violates the First Amendment rights of the owners and management of these businesses, it is likely that the Supreme Court will take at least one of these cases. Whichever case is accepted will probably be set for argument in March or April.
One of the issues in this campaign is the allegation that the EPA/Obama Administration has usurped its authority to go after coal and oil on climate change. Like many of the arguments from the Republican camp, the Republican think they can get away with this big lie because most people do not know how a regulation comes into place or the history that led to the current EPA action.
The basic rule in this country is that Congress (or a state legislature) can delegate the authority to write regulations to an adminstrative agency like the EPA. To do this, the law granting that authority must give specific guidance on when and how the agency is to adopt regulations. Typically, especially for an agency dealing with scientific issues like the EPA, the regulation process begins with an investigation into the facts of an issue followed by an initial proposal followed by a public comment period before a final regulation is adopted. After the final regulation is adopted, someone harmed by the regulation can seek judicial review over whether that regulation is supported by the evidence and complies with the grant of authority to the agency.
In the case of climate change, ther are several key statutes governing the scope of the EPA's authority. The first is the part of the Clean Air Act addressing EPA regulations of motor vehicles: US Code, Title 42, Section 7521(a)(1). Under this statute, the EPA must establish standards governing the release of air pollutants that "may reasonably be anticipated to endanger public health or welfare." The definition section of the Clean Air Act (Section 7602) defines air pollution as "any . . . substance or matter emitted into the ambient air," and defines effects on welfare as including effects on climate. The EPA has also traditionally taken the position that, if something is an air pollutant for motor vehicles, it is also an air pollutant for stationary sources (offices, factories, power plants, etc.). For stationary sources, there is a requirement for a pemit based on the nature of the stationary source and the amount of pollution released (either 100 tons per year or 250 tons per year based on the nature of the source) under Sections 7475, 7479(1), and 7602(j).
The process began in October 1999 when a coaltion of environmental groups and green industry groups filed a petition asking the EPA to investigate and make findings on greenhouse gases and climate change. Given the time involved in the regulatory process, the EPA was not able to conclude this process during the Clinton Administration. Ultimately, the G.W. Bush Administration issued its decision in September 2003 finding that it did not have the authority to issue greenhouse gas regulations and, alternatively, finding that it would be unwise to issue such regulations.
In response to this finding, a coalition of environmental groups asked for judicial review. During the judicial review, these groups were joined by several states and cities (with some business groups and states joining in support of the EPA). Among the state in support of the EPA were several states with Republican Governors including Massachusetts under then-Governor Mitt Romney. This petition was denied by a panel of the Court of Appeals for the DC Circuit in a split decision (with two judges in separate opinions supporting the EPA and one judge supporting the challengers).
With the death of cap and trade, significant climate change is now inevitable. Sooner or later, we will reach a tipping point, at which point climate change is not just a prediction, or a small effect that needs to be teased out by careful statistical analysis. Sooner or later, there will be a year where the cumulative effects of climate change will become undeniable. What would that year look like?
First of all, to be undeniable, we want it to be a year that "should" be cool according to other factors. Solar cycles add some variability to the Earth's temperature, so a year toward the end of a deep solar minimum would be good. El Niño is a natural phenomenon that tends to raise the temperature of the globe, so to be convincing it shouldn't be an El Niño year--ideally, it should be a La Niña year, when the Earth would be expected to be cooler. If the planet still experienced record warmth under those conditions, we'd know it was due to climate change, and not just a perfect storm of natural cycles.
And then there are the inexorable changes--direct manifestations of climate. Island nations would be making plans for the day they need to leave their drowning homeland. Coral reefs would die en masse. And most dramatically, the familiar image of the Earth from space, with its white polar caps, would be forever changed, as the northern cap dwindles away in the summer.
Think this is alarmist? Evidence for this scenario below the jump.
Without actually admitting the reality of anthropogenic climate change, Fox runs a promo for environmental awareness. Typical greenwashing, where a corporation gives a little PR nod to the environment while not actually doing anything, right?
Actually, it's worse than that.
This promo is aimed at people who are out of work, or contractors who don't have enough work. The message? Paraphrased, it's "As long as you're not doing anything anyway, go look for something that saves the planet."
If I were unemployed, and had been looking desperately for work for the past six months, and a winking Seth Macfarlane told me "the planet needs you...search the internet for job sites in the growing global business," I think there might now be a hole in my TV screen from the object I just threw at it.
I was going to do a different post this morning, mainly around the dysfunctional Senate and the Health Care Summit, but I added some comments on that in Jessica's post, so today I will comment on a different topic that I have had fun with this week. Climate Change. First I'll set up why. I have been on a Texas fishing message board ever since my back forced me to stop working last fall. They have an Off-Topic area where one of the sections is political orientated. Needless to say, Texas Sportsmen are mostly Right to Far Right in thinking. "Global Warming" has been a "Hot" topic for the to poke fun at this winter,
Well, me being one to try to point out the Truth, I just had to step up and try to present or inject Facts into the conversations. The misinformed souls fight facts with the same Republican talking points, and fight facts as irrelevant, it's amazing. When I presented them with: