Sunday, February 14, 2016

Law of the case

Scalia's death might change everything for the Clean Power Plan. Before there appeared to be a 5-4 majority on the Supreme Court that was likely ready to overrule the appellate court if the appellate ruling favored the Plan. Now there's just four, and on a 4-4 split, the appellate ruling would stand.

Some initial points, and I expect we'll see more about this:


  • "Law of the case" was going to kill us prior to now, but now the reverse is true. If the Supreme Court splits 4-4 on the Clean Power Plan, then it doesn't matter if a Republican wins the presidency and appoints some throwback - that case is finished. This is different from constitutional issues like Citizens United, where a future Democratic president appoints a changed majority of the Court that could reconsider the legal issues based on a new case that arises, like a new state law regulating campaign cash.
  • The 4-4 split means no change in the current status of the Plan, however. The stay suspending the Plan stays in place until the Supreme Court decides what to do with the inevitable appeal by whoever loses at the appellate court. Here's the actual language: "If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment."
  • In the past, when cases would've ended in a tie and then a new appointee arrived, they rescheduled and reargued the case - this could happen for the Clean Power Plan, which could get heard by the Court before a Republican gets appointed, and a decision issued afterwards. The 4-4 split stands only if it's issued before a new appointee gets on the Court.
  • If I were the Republicans, I would slow-walk the case. In particular if I lost at the appellate court, I'd petition for en-banc review by all the judges in that appellate court before appealing to the Supreme Court. Stall as much as possible and hope to win the presidency. Not sure what the EPA could do in response - maybe if there were some piddling issue they lost on, they could appeal to the Supreme Court - not sure if that's a good strategy.



27 comments:

John said...

If the Republicans nominate Trump or Cruz, they'll lose big-time. Establishment Republicans worry about this. I'm OK with it, though.

But if Michael Bloomberg runs as an independent, all bets are off.

Fernando Leanme said...

The usa government has decayed to the point that the justices are considered "democrats" or "republicans" rather than being described by their leanings towards judicial activism or strict constructionism. I suppose what you want is a degenerate court so politicized it will judge the case on the merits of global warming rather than whether Obama oversteps constitutional authority.

BBD said...

What is required, Fernando, is a judgement that doesn't reflect the conservative, anti-science bias of certain of the judges.

What we have just witnessed was a judgment distorted by political bias. If you didn't perceive this then you are even more lost in space than I thought.

luminous beauty said...

Fernando,

This case hinges on interpretation of statutory law, not the Constitution. This court has already decided the EPA has the constitutional authority to regulate carbon emissions. Whatever sad, sour and sorry point you are trying to make is, as the lawyers say, moot.

Entropic man said...

I am an Englishman, so apart from a green tinge I have no skin in this game.

But did Benjamin Franklin really intend the government he designed to be this dysfunctional?

Kevin O'Neill said...

Entropic man - The US Constitution was literally written by James Madison, but it was the product of the Constitutional Convention. The main ideological contributors are usually considered to be Thomas Jefferson, James Madison, Thomas Paine, Alexander Hamilton and John Adams. Of course they owed much of their beliefs to having read Hobbes, Locke, Rousseau, etc.

The debates (at the time) around the constitution and its ratification reveal oftentimes contradictory viewpoints and are depressingly familiar.

jrkrideau said...

@Anon
I am not sure but a Brit who majored in American History in Canada (don't ask) once mentioned to me that he did think the people who wrote the constitution purposely designed it so it would not work.

Think of the Romans with two consuls who ruled on alternate days. However the Roman Senate could appoint a dictator in a real emergency.

I doubt they expected anything this dysfunctional.

Hank Roberts said...

Kurt Gödel: A Contradiction in the U.S. Constitution?

Hank Roberts said...

P.S.:

http://assets.amuniversal.com/c3bc7200967d0133301e005056a9545d

JohnMashey said...

I think they allowed for a lot differing views over policy, size and shape of government relationship with states.

I'm not sure they anticipated the rise of substantial party segment designed (with money and strong organization) to make the Federal government not work, and easier task than taking control and governing, thus having to be responsible.

Nigel Franks said...

Entropic man "I am an Englishman, so apart from a green tinge I have no skin in this game.
Is that from all the rain?

BBD said...

Unfortunately, we've all got skin in this game.

Entropic man said...

Nigel Franks

I live in Ireland, which is even wetter. Why do you think they have forty shades of green?☺

I did a bit of research on this and found several historians who regarded Benjamin Frankin as a big influence on the design of the Constitution. I have also encountered suggestions that the federal government was intended to be a small organisation intended to do those few things, like foreign policy, which the individualstates could not do for themselves.

A cynic might wonder if "states rights" was the main priority, and the intent was to limit federal power.

Was it designed as a three way tug-of-war or did it just turn out that way?

David B. Benson said...

Entropic Man --- As I remember my 2 years of American history, yes, designed to be a 3 way division of power. To avoid excess.

Kevin O'Neill said...

Entropic man - Franklin played a key role at the Constitutional Convention mostly as a moderator and his ability to find compromise between the different factions (think Federalists and Anti-Federalists). He was the senior member of the convention (81 yrs old), it was held in Philadelphia and he was the host, and he had the respect of everyone there.

But few of his personal views actually made it into the constitution; he was an abolitionist, yet slavery persisted; he believed in a one-term Presidency, they decided on two; he also believed the President should serve without pay.

Franklin is probably my favorite of all the founding fathers, but it would be inaccurate to claim he wrote the constitution. What he did was cajole opposing sides to find middle ground for the betterment of the country as a whole.

Raymond Arritt said...

@Kevin O'Neill, the two-term restriction on the presidency did not come until much, much later with the 22nd Amendment. Recall FDR was elected to four terms.

Kevin O'Neill said...

Raymond - yes, you are correct - thanks for the reminder. Franklin only wanted one term - so it was worse (per Franklin's views) than my senile memory believed :)

Oale said...

I'm rather curious about why you Usaians allow possibly demented judges of over 70 years of age to be the highest authorities on laws?

Entropic man said...

Oslo

We Brits have the House of Lords.....

William Connolley said...

I had two thoughts:

1. suppose the Repubs decide that they're likely to lose the presidential elections, would they be better off accepting an Obama nominee now, rather than risk a new prez pushing someone "worse" from their point of view?

2. if the 4-4 impasse persists for years, and that turns into lower court judgements being allowed to stand a lot, then that removes a check on the lower courts, which no longer risk being overruled (in some cases). Will that make the lower courts more activist?

Mal Adapted said...

William,

Republican congressional "leaders" have made it abundantly clear that nothing could be worse than whatever Obama does.

Brian said...

Re William's Thought #1: maybe. Next year there will be more Democrats in the Senate, maybe a majority, so Obama might feel more constraint than Hillary. OTOH, Hillary needs to do some deals with the Republicans and Obama doesn't, so she's constrained in a way he's not.

If the Rs played that game, they should wait until they see who Obama comes up with and then decide whether it's better to accept that person.

Re Thought #2: I think that's right that appellate judges, particularly liberal ones that have been overruled a lot by the conservative Supreme Court, might take stronger stands. Not sure it's a huge effect though, they still seem willing to take a stance knowing the Supreme Court may disagree (and the Supremes rule on very few cases anyway, about 50-60 a year).

EliRabett said...

Any reasonable Republicans (especially those up for election) do not dare be reasonable, because they will be primaried from the right. OTOH if they are not reasonable they will face a backlash in the general election.

Delicious.

Brandon R. Gates said...

Brian/William,

Re William's point 2, one op-ed I read notes that appellate courts have been stacked by Obama appointees during his administration. Thus whether or not those courts become more activist, a persistent 4-4 SCOTUS split might work to the advantage of liberal causes anyway. It also noted that the very liberal 9th circuit is the most overturned of appellate courts and thus a prime candidate for judicial activism.

As Eli notes, the GOP look to be caught between the rock and a hard place.

David B. Benson said...

Those are not Republicans. They are Republicants.

caerbannog said...


I am an Englishman, so apart from a green tinge I have no skin in this game.

But did Benjamin Franklin really intend the government he designed to be this dysfunctional?


After the close of the Constitutional Convention of 1787, Franklin was asked "What have we got -- a Republic or a Monarchy"?

His answer: "A Republic, if you can keep it."

Seems particularly apropos to today...

Brian said...

Republicans could time the confirmation vote to occur after primary season has ended.

Regardless though, I think it makes sense from their viewpoint to stall through the election (assuming you accept the institutional damage to the judiciary). At worst they have a 40% chance of winning the presidency and getting their own nominee instead. They'll take a hit for inaction during the election (and deserve it), so the rest of humanity can just hope it costs them a senator or two. Unlikely, but maybe it will.