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Umpires no more

High court majority seeks to usurp the powers of Congress and the executive


“I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”
Chief Justice John Roberts during his 2005 Senate confirmation

The justices who sit on the nation’s highest court like to compare themselves to baseball umpires, acting merely as impartial individuals pledged to offer an objective opinion on the pitches tossed by others. That was then.
Today, with an activist super-majority now in charge, the Roberts’ court appears to be willing and able to both pitch, bat, and call its own balls and strikes.
At least the minority on the court is willing to call them on it. In the minority dissent in the 6-3 ruling in West Virginia v. Environmental Protection Agency, Justice Elena Kagan exposed this reckless new court majority for what it is, a fundamentally dishonest political force that is imposing itself into the work of the other branches of government to a degree this country has rarely experienced.
As Kagan notes, the Supreme Court needn’t have wasted its time on this case, which was effectively moot. The issue before the court was the Clean Power Plan, initiated by the Obama administration, which the Roberts court unilaterally blocked shortly after it was announced. The Trump administration repealed it and the Biden administration announced it had no plans to implement it but would develop its own plan for dealing with carbon dioxide pollution, the primary contributor to global warming.
So why did the high court even expend resources to bat down a plan, now nearly seven years old, that everyone acknowledged would never be implemented regardless of their decision? Call it a shot across the bow, says Kagan. It’s directed at the Biden EPA, which is still working on its own plan to regulate carbon dioxide, and this court wants to be sure that plan fits their political agenda. “But this Court could not wait—even to see what the new rule says—to constrain EPA’s efforts to address climate change,” writes Kagan in her dissent, joined by both Justices Breyer and Sotomayor. It’s the umpire telling the pitcher what to throw next.
And the court’s impositions aren’t merely imposed on the executive branch— they also second guess Congress and what it really meant when it gave the EPA broad authority to regulate pollutants, like carbon dioxide. In the majority opinion, the court claims “it is not plausible that Congress gave EPA the authority to regulate C02 in the manner it proposed.” “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
Yet, as Kagan points out, Congress gave the EPA broad authority through Section 111 of the Clean Air Act to “regulate stationary sources of any substance that ‘causes, or contributes significantly to, air pollution’ and that ‘may reasonably be anticipated to endanger public health or welfare.’”
As Kagan rightfully notes, carbon dioxide and other greenhouse gases clearly fit that description. Indeed, climate change is arguably one of the most significant threats to the public’s health and welfare in modern history, and it is well-accepted scientific fact that carbon dioxide, produced in the power plants relevant to this case, is major contributor to that hazard.
And how was the EPA supposed to regulate carbon dioxide, as Congress clearly intended? According to the statute’s own language, it was through implementation of “the best system of emission reduction,” which Congress left to the EPA and its experts to determine. The radical majority on the high court may not like that delegation of authority, but who cares? Congress writes the laws, not those “umpires” on the court.
But that’s not how the new radical court majority views it. They’ve made it clear that they want to rein in the executive branch agencies that have been charged from the early days of the Republic with interpreting and implementing the laws passed by Congress. It’s part of a longstanding mission of the far right to eliminate regulations that govern everything from food and worker safety, to banking practices, to environmental protection. The court knows that Congress can barely pass a budget these days. To think Congress is going to craft complex regulations to in any way keep pace with the rapid changes in technology and society or keep bad actors in check is preposterous. What’s more, dismantling the nation’s regulatory agencies won’t hand power back to Congress, particularly with this court in charge. It puts power back in the hands of corporate America, at the expense of workers, consumers, and the planet in general. And this court clearly doesn’t care what Congress, federal agencies, or the public have to say about it.