scotus

this is a tag for Supreme Court and newer content

FROM TINA PETERS

...The ‘court packing’ myth

Many pundits hailed Roberts for opposing the overturning of Roe v. Wade, but in the Dobbs decision, he lost out to the five Republican appointees on ‘his’ court who are seemingly even further right than he is.

Many progressives weren’t buying the righteous, caring and politically aloof version of himself Roberts portrayed back then, and they say this latest reporting shows they were right.

“That's interesting how there's sort of this story out there that Roberts was like a moderate and mediator. And the [NYT] story would suggest that’s not really necessarily the case,” Sen. Tina Smith (D-MN) told Raw Story after voting on the Senate floor this week.

While Republican rhetoric paints all elected Democrats — from the top of the party’s presidential ticket on down — as wanting to expand, or ‘pack,’ the court, only three Senate Democrats have formally endorsed a progressive measure to expand the size of the court, as Raw Story reported last month.

Smith and Massachusetts Democratic Sens. Ed Markey and Elizabeth Warren are the three who’ve publicly endorsed Markey’s measure to expand the size of the Supreme Court. That’s it.

Even with all the negative press, Smith says other Senate Democrats haven’t approached them about their measure to expand the size of the court.

“I haven't heard any,” Smith said.

That doesn’t mean her colleagues aren’t discussing the Roberts Court.....

Why the Latest Supreme Court Term Was the Worst In Decades for Conservative Justices

But next term may see conservative backlash.

By Kenneth Jost / Supreme Court Yearbook/Jost on Justice July 13, 2015

Chief Justice John G. Roberts had just finished reading his biting dissent in the same-sex marriage case when he took up the more mundane duty of announcing that Justice Antonin Scalia had the opinion in the next case: Johnson v. United States. “Don’t go away,” Scalia quipped.

Scalia’s opinion would have gotten a fair share of attention that day [June 26] but for the marriage decision. With the votes of six justices, the court struck down a provision of federal law that imposed an additional 15-year to life prison term on a federal offender with at least three prior convictions for “violent” felonies.

The Armed Career Criminal Act, enacted in 1984, applies to some specific priors and in the so-called “residual clause” also includes crimes with “conduct that presents a serious potential risk of physical injury to another.” Scalia had twice written dissents, in 2007 and 2011, urging that the clause be struck down as unconstitutionally vague.

Scalia appeared to be as cheerful as a canary-eating-cat as he announced the decision that vindicated his dissents of still recent memory. By contrast, the 79-year-old justice was at his sarcastic worst the day before when he dissented from the decision written by Roberts that saved the Affordable Care Act.

In fact, it was a bad term overall for Scalia: apparently his worst ever. He dissented in 23 cases, the highest number at least since the 1992-93 term when I began counting dissenting votes for my annual series Supreme Court Yearbook.

Scalia was not alone. The court’s three other reliable conservatives also had personal-worst years. Justice Clarence Thomas dissented in 29 cases: not only his highest number, but also the highest figure for any justice since OT 1992. Justice John Paul Stevens held the previous record: 28 dissents in two separate terms, 1999-2000 and 2008-09.

The Supreme Court Yearbook compilation does not reach back to Scalia’s first six terms or Thomas’s first. But the court’s conservatives generally held sway during those years, so their dissenting numbers were unlikely to have been on the high side.

Roberts and Justice Samuel A. Alito Jr. also recorded personal highs for dissenting votes during OT 2014. Roberts cast 16 dissenting votes, surpassing his previous high of 14 dissents in OT 2008. Alito cast 21 dissenting votes; he had previously dissented in 16 cases in the 2012-2013 term.

Meanwhile, three of the court’s liberal justices recorded personal bests. Ruth Bader Ginsburg cast 10 dissenting votes, the lowest number in her 23 terms. With six dissents, Stephen G. Breyer had the lowest number in his 22 terms; he was also the lowest of any of the justices for the term — the second time he has had that distinction. With eight dissents, Sonia Sotomayor had the lowest number for her six terms; Kagan, with 11 dissents, had the second lowest number for her five terms.

The historical comparisons fortify the general characterization of the court as having tilted quite unusually to the left in OT 2014. The liberal justices, often bolstered by votes from the bloc-shifting Anthony M. Kennedy, prevailed not only in the marriage and Obamacare cases but also in most of the other important, divided decisions.

Scalia’s late-term victory in Johnson, however, shows the conservatives may be down but not out. Indeed, the conservatives won two of the three decisions on the term’s final day, and they appeared to be the moving force the next day in a bit of aggressive agenda-setting for the coming term.

The justices accepted for next term a significant challenge to public employee unionsbrought by dissident California teachers, Friedrichs v. California Teachers Association. This will be the court’s third case in five years challenging so-called agency shop rules that require public employees to pay fees to unions for the costs of collective bargaining even if they are not members. The plaintiffs claim the fees violate their freedom of speech and association; the unions say eliminating the fees would allow the dissidents to be free-riders — getting union-provided representation and benefits without paying for them.

The court struck down an agency shop provision in a decision last year affecting Illinois home health care workers, Harris v. Quinn (2014). In his majority opinion, Alito criticized but stopped short of overruling the precedent that allows agency shop provisions: Abood v. Detroit Board of Education (1977). The new case is viewed by public employee unions as the shoe set to fall.

The court had already set up a new test of racial preferences in university admissions by agreeing to hear Fisher v. University of Texas. This is the sequel to its earlier ruling in the same case in 2013 instructing the federal appeals court to take a second look at UT’s policies.

The conservative justices were also the likely votes for hearing a politically significant redistricting case, Evenwel v. Abbott, also from Texas. The plaintiffs want to read the one-person, one-vote rule to count the voting population instead of total population in equalizing legislative districts. A ruling to that effect could shift political power away from areas with significant non-citizen populations or low voter registration.

With those and other cases already teed up, conservatives are hoping for the best and liberals bracing for the worst. “Next term is going to be at least as important as this term, if not more,” remarked Steven Vladeck, a professor at American University’s Washington College of Law.

Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor

http://www.alternet.org/civil-liberties/why-latest-supreme-court-term-was-worst-decades-conservative-justices

http://www.alternet.org/environment/us-supreme-court-strikes-down-obamas-epa-limits-air-pollution

7/15

The U.S. Supreme Court struck down new rules for America’s biggest air polluters on Monday, dealing a blow to the Obama administration’s efforts to set limits on the amount of mercury, arsenic and other toxins coal-fired power plants can spew into the air, lakes and rivers.

The 5-4 decision was a major setback to the Environmental Protection Agency (EPA), and could leave the agency more vulnerable to legal challenges from industry and Republican-led states to its new carbon pollution rules.

It was also a blow to years of local efforts to clean up dangerous air pollution.

The justices embraced the arguments from the industry and 21 Republican-led states that the EPA rules were prohibitively expensive and amounted to government overreach.

The decision, written by Justice Antonin Scalia, ruled that the EPA did not reasonably consider the cost factor when drafting regulation.

The Clean Air Act had directed the EPA to create regulations for power plants that were “appropriate and necessary”. The agency did not consider cost when making its decision, the court ruled, but estimated that the cost of its regulation to power plants would be $9.6bn a year.

Scalia was joined by the conservative members of the bench. The dissent, written by Elena Kagan, was supported by Ginsburg, Breyer and Sotomayor.

The landmark decision closes a chapter on a two-decade-long effort to force stricter emissions standards for coal-fired power plants.

The regulation, adopted in 2012, would have affected about 600 coal-fired power plants across the country — many of which are concentrated in the midwest and the south....regulates jet exhaust epa

-=-=

texas

Holding: The Clean Air Act neither compels nor permits the Environmental Protection Agency to adopt an interpretation of the Clean Air Act requiring a stationary source of pollution to obtain a "Prevention of Significant Deterioration" or Title V permit on the sole basis of its potential greenhouse-gas emission. However, EPA reasonably interpreted the Clean Air Act to require sources that would need permits based on their emission of chemical pollutants to comply with “best available control technology” for greenhouse gases.

Judgment: Affirmed in part, reversed in part., 9-0, in an opinion by Justice Scalia on June 23, 2014. Justice Scalia announced the judgement of the Court and delivered an opinion, Parts I and II of which were for the Court. Justice Thomas and Justice Alito joined the opinion as to Parts I, II-A, II-B-1, and Justice Ginsburg, Justice Breyer, Justice Sotomayor and Justice Kagan joined as to Part II-B-2. Justice Breyer filed an opinion concurring in part and dissenting in part, in which Justice Ginsburg, Justice Sotomayor, and Justice Kagan joined. Justice Alito filed an opinion concurring in part and dissenting in part, in which Justice Thomas joined.

SCOTUSblog Coverage

4/15

2009?

https://www.heartland.org/sites/default/files/ef_sc_cert_amicus_153014_1_final_2.pdf

Nos. 12-1268, 12-1269, 12-1272

http://www.scotusblog.com/case-files/cases/southeastern-legal-foundation-v-environmental-protection-agency/

In The Supreme Court of the United States

SOUTHEASTERN LEGAL FOUNDATION, INC., ET AL.,

Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.

TEXAS, ET AL., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, ET AL. -

http://www.scotusblog.com/case-files/cases/texas-v-environmental-protection-agency/

CHAMBER OF COMMERCE OF THE UNITED STATES, ET AL., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF OF AMICI CURIAE SCIENTISTS

IN SUPPORT OF THE PETITIONS FOR CERTIORARI

CHRISTIAN J. WARD (Counsel of Record) APRIL L. FARRIS

YETTER COLEMAN LLP 221 West Sixth Street Suite 750 Austin, Texas 78701 (512) 533-0150

cward@yettercoleman.com

Attorneys for Amici Curiae Scientists in Support of the Petitions for Certiorari

...

INTEREST OF AMICI CURIAE1

Amici curiae are well-qualified climate

scientists. Amici include respected professors and

scientists who have worked for government

agencies, universities, and businesses. These

highly regarded scientists have expertise in a wide

array of fields implicated by this rulemaking,

including climate research, weather modeling,

physics, geology, statistical analysis, and

engineering. They have many publications in peerreviewed

journals and are respected in their fields

of expertise by their peers.

Amici wish to present to this Court scientific

data that bear directly on the underlying

rulemaking. Specifically, amici submit that EPA’s

finding of human-caused global warming is not

supported by the evidentiary record that was

before EPA.

1 Pursuant to Supreme Court Rule 37.6, counsel for amici

certifies that this brief was not authored in whole or in

part by counsel for any party, and no person or entity

other than amici or their counsel has made a monetary

contribution to the preparation or submission of this

brief. Pursuant to Rule 37.3(a), counsel of record for all

parties received notice at least 10 days prior to the due

date of the amici curiae’s intention to file this brief. All

parties have consented to the filing of this brief. Those

consents are being lodged herewith. Blanket consents

are also already on file with the Clerk.

Amici curiae are the following scientists:

Dr. Timothy F. Ball

Professor, University of Winnipeg (retired),

Ph.D., Queen Mary College, University of London

M.A., University of Manitoba

B.A., University of Winnipeg

Joseph S. D’Aleo,

Certified Consultant Meteorologist,

American Meteorological Society Fellow

M.S., Meteorology, University of Wisconsin

B.S., Meteorology (cum laude), University of

Wisconsin

Dr. Don J. Easterbrook

Emeritus Professor of Geology, Western

Washington University

Ph.D., Geology, University of Washington, Seattle

M.S., Geology, University of Washington, Seattle

B.S., Geology, University of Washington, Seattle

Dr. Gordon J. Fulks

Ph.D., Physics, University of Chicago

M.S., Physics, University of Chicago

B.S., Physics, University of Chicago

Dr. William M. Gray

Emeritus Professor of Atmospheric Science,

Colorado State University

Ph.D., Geophysical Sciences, University of Chicago

M.S., Meteorology, University of Chicago

B.S., Geography, George Washington University

Dr. William Happer

Professor of Physics, Princeton University

Ph.D., Physics, Princeton University

B.S., Physics, University of North Carolina

Dr. Anthony R. Lupo

IPCC Expert Reviewer

Professor, Atmospheric Science,

University of Missouri

Ph.D., Atmospheric Science, Purdue University

M.S., Atmospheric Science, Purdue University

Dr. Thomas P. Sheahen

Ph.D., Physics, M.I.T.

B.S., Physics, M.I.T.

Dr. S. Fred Singer

Fellow AAAS, APS, AGU

Prof Emeritus of Environmental Sciences,

University of Virginia

Ph. D., Physics, Princeton University

BEE, Ohio State University

Dr. James P. Wallace III

Jim Wallace & Associates, LLC

Ph.D., Economics, Minor in Engineering,

Brown University

M.S., Mechanical Engineering, Brown University

B.S., Aeronautical Engineering, Brown University

Dr. George T. Wolff

Former Chair EPA’s Clean Air Scientific Advisory

Committee

Ph.D., Environmental Sciences,

Rutgers University

M.S., Meteorology, New York University

B.S., Chemical Engineering, New Jersey Institute

of Technology

SUMMARY OF THE ARGUMENT

In the midst of an unsettled and vigorous

international debate regarding the existence of

purported global warming and the role—if any—of

human-emitted greenhouse gases (GHGs) in

contributing to that alleged warming, EPA

concluded with near absolute certainty that

temperatures in the second half of the twentieth

century were “unusually” high because of

anthropogenic greenhouse gases. 74 Fed. Reg.

66518 (2009). That sweeping conclusion was a

critical component of the EPA’s Endangerment

Finding, and so was an impetus for the most

significant and far-reaching regulatory program

ever devised by a federal agency.

Amici urge the Court to grant

....

EPA’s own Inspector General, in a procedural review issued in September 2011, faulted EPA for procedural deficiencies including the refusal to use the Scientific Advisory Board process. EPA, Office of Inspector General, Procedural Review of EPA’s Greenhouse Gases Endangerment Finding is a key determinant of climate change can provide accurate forecasts of future conditions; and (4) whether natural (nonanthropogenic) forces and internal climate variability are the primary drivers of the earth’s climate. Comment submitted by Dr. David R. Legates, C.C.M., Assoc. Professor of Climatology, Univ. of Del., to Hon. Lisa P. Jackson, Adm’r, EPA (Oct. 7, 2009), docketed as EPA-HQ-OAR-2009- 11465 (Oct. 21, 2009), available at http://www.regulations.gov/#!documentDetail;D=E PA-HQ-OAR-2009-0171-11465 (hereinafter “Comment by Legates”); see 74 Fed. Reg. 18886 (2009). Essentially, EPA was expressly urged to consider the facts discussed above. The scientists also urged EPA to use the Scientific Advisory Board process, permitting an on-the-record hearing, in which it could draw on analysis from qualified scientists in different fields of knowledge. See Comment submitted by Legates. But EPA ignored these comments, glossed over these fundamental scientific questions, and relied on adjusted, unreliable data. 23 Data Quality Processes, Report No. 11-P-0702, at 36 (Sept. 26, 2011), available at www.epa.gov/oig/reports/2011/20110926-11-P-07 02.pdf (hereinafter “Inspector General’s Report”); Non-State Petitioners’ Request for Judicial Notice, Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency, Case No. 09- 1322 (CADC Sept. 30, 2011), ECF No. 1332845. In particular, the Inspector General criticized EPA for failing to follow all recommended steps for an external peer review by independent experts. See Inspector General’s Report, at 36. Some of the signatories to the October 2009 letter and other independent scientists, in a group that also included some of the amici before this Court, lodged an amicus brief with the court of appeals making similar points about the data and EPA’s scientific conclusions. Brief of Amici Curiae Scientists in Support of Petitioners Supporting Reversal, Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency, No 09-1322 (CADC June 8, 2011), ECF No. 1312291. The D.C. Circuit declined to grant leave for that brief to be filed. That court also denied parties’ request to supplement the record with the Inspector General’s report. Order, Coalition for Responsible Regulations, Inc. v. Environmental Protection Agency, No. 09-1322 (CADC Jan. 13, 2012), ECF No. 1352684. 24 In short, EPA’s process was far less rigorous than it should and could have been. And the court of appeals erred in failing to recognize the deficiencies in it. CONCLUSION For these reasons, and those discussed more fully in the petitions, amici urge the Court to grant the petitions for a writ of certiorari. Respectfully submitted, CHRISTIAN J. WARD Counsel of Record