It’s been a jam-packed week for the Supreme Court: On Monday, the justices delved into Senate Bill 8, Texas’s controversial abortion bounty law, and sounded very skeptical about whether they’ll allow it to stand. A day later, they waded into a thorny dispute between members of a community college board, in a case that could have far-reaching First Amendment implications. Then, on Wednesday, the justices took up a major Second Amendment case involving concealed-carry rights that could end up unwinding gun control laws across the country.
And yet, for all of this week’s action, none of these cases truly represent the high court’s most significant move over the past week. On October 29, the Supreme Court agreed to hear appeals from coal-producing states and the corporations in that industry seeking to limit the Environmental Protection Agency’s authority to regulate carbon emissions from coal-fired power plants. The high court’s decision to hear the case could “sharply cut back, if not eliminate altogether, the new administration’s ability to use the Clean Air Act to significantly limit greenhouse gas emissions from the nation’s power plants,” Richard J. Lazarus, a law professor, told The New York Times. On a broader scale, the maneuver suggests that the court’s new majority could be ready to open a shooting war against democracy—and, perhaps, the planet.
What made the court’s decision so unusual, in this instance, is that the EPA has not yet implemented or even proposed a regulation; there’s no actual agency action for the court to review. Rather than seek a remedy arising from a regulation, the plaintiffs have asked the justices to take preemptive action to “clarify the bounds of EPA’s power” before President Biden even tries to pass any climate regulations. Or as frequent TNR contributor Simon Lazarus (no relation to Richard) told me, the coal industry is seeking an “advisory opinion”—something the high court is not supposed to offer.
“This is a brand of judicial meddling that violates the most fundamental constitutional principle cabining judges’ authority to oversee executive branch activity,” Lazarus told me. In other words, courts cannot act as “roving commissions” to make pronunciations about the law in abstract but can rule only on actual “cases or controversies.”
“This keystone of judicial restraint has been in place since as long ago as 1793, when the Supreme Court rejected George Washington’s request for advice on the scope of U.S. treaty obligations to France,” Lazarus said. “The fact that this court, at least the four members required to accept a review petition, could now blow past this hoary maxim that ‘federal courts do not issue advisory opinions’–which this court itself reiterated barely four months ago, in a June 2021 ruling—shows how unconstrained the six-justice ultraconservative majority feels, when given a chance to nail down a political objective.”
This kind of action opens the door to the slow decimation of the administrative state. Executive branch agencies can’t function nimbly unless they’re given broad latitude to interpret the laws passed by Congress. An EPA that couldn’t rely on that leeway would need Congress to constantly pass new laws directing it how to proceed on every matter in its purview and then pass additional new laws covering the same ground as circumstances changed.
The October 29 decision signals that the Supreme Court plans to take back the authority to make broad interpretations rather than continue to grant latitude to the executive branch. As Vox’s Ian Millhiser has written, the courts would “gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.”
“In theory,” Millhiser writes, “that could mean that federal regulations will simply receive more scrutiny from an impartial judiciary.” But with a 6–3 conservative supermajority, the court gains “the ability to veto nearly any regulation handed down by a Democratic administration.” This could kneecap President Biden’s ability to enact climate protections and beyond.
The Supreme Court’s conservatives are telling on themselves in two ways. First, they’re signaling that a larger judicial war against the administrative state is about to kick off in earnest and that they will take aim at the mechanisms that allow Congress and executive branch agencies to respond to the needs of ordinary Americans. This is bad news for Democrats specifically, as the GOP typically makes little effort to pass regulations or make the federal government more functional, and thus has less to lose in a world in which executive branch agencies can’t act without the say-so of a conservative judiciary.
This fact naturally leads to the second reveal: For all the effort expended over the past few months by Justices Samuel Alito, Amy Coney Barrett, and Stephen Breyer to convince us that they are impartial callers of balls and strikes, and not political actors, last Friday’s decision effectively debunks that notion. After all, what could be more “political” than announcing an intention to discard a legal maxim that’s stood since the nation’s founding in a Friday news dump, just as the president was on his way to an international climate conference? We should be under no illusion about what the Supreme Court intends to do—and how soon it plans to do it.
This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.